Walker v. Mitchell Clay Mfg. Co., No. 19576.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBennick
Citation291 S.W. 180
PartiesWALKER v. MITCHELL CLAY MFG. CO.
Docket NumberNo. 19576.
Decision Date11 January 1927
291 S.W. 180
WALKER
v.
MITCHELL CLAY MFG. CO.
No. 19576.
St. Louis Court of Appeals. Missouri.
January 11, 1927.

[291 S.W. 181]

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by August Walker against the Mitchell Clay Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Foristel, Mudd, Bezel & Habenicht, of St. Louis, for respondent.

BENNICK, C.


This is an action for damages for personal injuries sustained by plaintiff, an employé of defendant, on March 10, 1924. The verdict of the jury was in favorer an unavailing motion for a new trial, defendant has duly perfected this appeal. The negligence pleaded and submitted to the jury was the alleged failure of defendant to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work. The answer was a general denial, coupled with a plea of contributory negligence. The reply was in conventional form.

The evidence disclosed that plaintiff, who was 60 years of age, had been in the service of defendant for approximately 10 years when he received the injury for which this action for damages was brought. He, in company with two fellow employés, worked as a tile molder under the supervision of a general manager named Knoesel.

The clay which was used in the manufacture of the tiles was obtained in a room apart from that in which the actual molding was done. A truck, which ran on two iron wheels, was supplied to each molder, upon which it was the duty of such molder to bring in his own clay, the loads of which varied from 800 to 2,000 pounds in weight. In order to prevent the floor from being damaged by the wheels of the trucks, defendant had constructed a gangway by nailing boards of yellow pine to the floor. These boards were one inch in thickness, and varied from 3 to 12 inches in width, and were laid crosswise. The gangway was 16 feet long, and from 8 to 12 feet in width. By reason of the constant use of the heavy trucks over the gangway, the boards comprising it from time to time became worn and splintered. When such condition developed, it was permissible for the employés to report the fact to one Bray, the carpenter, by whom the worn boards would be removed and new ones laid down. Knoesel himself admitted that the gangway was continually getting-splintered and out of order, and that the boards were changed quite often. Bray testified that pine was a kind of wood that splintered easily.

It appears that the condition of the floor was such that an employé's shoes would be worn out in one month's time, and that splinters would often come through the soles. By reason of this fact, plaintiff (and by inference his fellow employés also) wore two pairs of shoe soles. On the day in question, while plaintiff was walking upon the gangway in the course of his employment, a splinter from one of the boards thereof in some manner came between the two soles of the shoe on his right foot, causing him to fall and receive painful injuries. (No point is made as to the excessiveness of the damage award.) The splinter was about 18 inches long and 11/2 inches wide, tapering to a point, and the part of it.which came between the soles of plaintiff's shoe was about 3 inches in length.

291 S.W. 182

It was developed on cross-examination of plaintiff that the flooring at the point where he was injured was "all busted up," and that such condition had existed for nine days, although complaint had been made to defendant about it. There was also evidence that the floor had been in need of repairs for a period of two Months. Certain of defendant's witnesses admitted that they had observed splinters in the floor prior to the time that plaintiff's injury was received, and it was established that the particular splinter which caused plaintiff to fall was from that part of the gangway where the wheels of the truck ran. Immediately after the accident both Knoesel and Bray observed smaller splinters near the large one, although both testified that on their ordinary trips of inspection prior thereto no such condition had come to their attention.

Defendant urges most earnestly that the court erred in refusing to give its peremptory instructions in the nature of demurrers to the evidence requested both at the close of plaintiff's case and at the close of the whole case. Of course, inasmuch as defendant did not stand upon its first demurrer, but put in its own evidence, the correctness of the court's ruling on the demurrer requested at the close of the whole case is the only point to be reviewed. Frye v. St. L., I. M. & S. R. Co., 200 Mo. 377, 98 S. W. 566, 8 L. R. A. (N. S.) 1069; Canty v. Halpin, 294 Mo. 96, 242 S. W. 94; Smiley v. Jessup (Mo. App.) 282 S. W. 110; Roberson v. Loose-Wiles Biscuit Co. (Mo. App.) 285 S. W. 127. In passing upon such demurrer, plaintiff must be given the benefit, not only of all testimony that was adduced in his favor, but also of any favorable testimony that was given by defendant's witnesses, in addition to which he must be allowed the benefit of reasonable inferences of fact on all the proof. Williams v. Kansas City R. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Metropolitan Street Railway Co., 243 Mo. 305, 147 S. W. 1032; Larkin v. Wells (Mo. App.) 278 S. W. 1087; Courtois v. American Car & Foundry Co. (Mo. App.) 282 S. W. 484; Gray v. Union Electric Light & Power Co. (Mo. App.) 282 S. W. 490; Gehbauer v. Hahn Bakery Co. (Mo. App.) 285 S. W. 170.

Defendant bases its hopes for reversal upon two contentions: First, that there was no proof that defendant had failed to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work; and, second, that plaintiff was guilty of contributory negligence as a matter of law.

As to the first of these contentions, we concede, as is argued by defendant, that defendant was not an insurer of plaintiff against...

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13 practice notes
  • Powell v. Schofield, No. 4596.
    • United States
    • Missouri Court of Appeals
    • March 30, 1929
    ...whole and as a single charge. Rudy v. Auteurieth et al., 287 S.W. 850; Schultz v. Schultz, 293 S.W. 105; Walker v. Mitchel Clay Mfg. Co., 291 S.W. 180; Hildebrand v. St. L. & S.F. Ry. Co., 298 S.W. 1069. (7) If, in the opinion of counsel for defendant, plaintiff's instruction on the measure......
  • Schillie v. Atchison, Topeka & Santa Fe Railway Co., No. 15135.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 17, 1955
    ...Co., 195 Mo.App. 480, 193 S.W. 963; Friedman v. United Rys. Co., 293 Mo. 235, 238 S.W. 1074; Walker v. Mitchell Clay Mfg. Co., Mo. App., 291 S.W. 180; Blackwell v. J. J. Newberry Co., Mo.App., 156 S.W.2d 14; Haverkost v. Sears, Roebuck & Co., Mo. App., 193 S.W.2d 357; Dill v. Dallas County ......
  • Teitsort v. Illinois Central Railroad Co., No. 27660.
    • United States
    • Missouri Supreme Court
    • March 29, 1929
    ...S.W. 484; Wright v. Wells, 284 S.W. 848; Wair v. Am. Car Co., 285 S.W. 155; Gehbauer v. Bakery Co., 285 S.W. 170; Walker v. Clay Mfg. Co., 291 S.W. 180. (3). Where the railroad had established and maintained a crossing which was in general use, that it was termed a "farm crossing" as distin......
  • Watkins v. Bird-Sykes-Bunker Co., No. 27255.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...S.W. 715; Combs v. Const. Co., 205 Mo. 367; Dayharsh v. Railroad, 103 Mo. 570; Koerner v. Car Co., 209 Mo. 141; Walker v. Clay Mfg. Co., 291 S.W. 180; Corby v. Tel. Co., 231 Mo. 417; George v. Railway Co., 225 Mo. 364; Edmondson v. Hotel Statler, 306 Mo. 216; McCarver v. Lead Co., 216 Mo. A......
  • Request a trial to view additional results
13 cases
  • Powell v. Schofield, No. 4596.
    • United States
    • Missouri Court of Appeals
    • March 30, 1929
    ...whole and as a single charge. Rudy v. Auteurieth et al., 287 S.W. 850; Schultz v. Schultz, 293 S.W. 105; Walker v. Mitchel Clay Mfg. Co., 291 S.W. 180; Hildebrand v. St. L. & S.F. Ry. Co., 298 S.W. 1069. (7) If, in the opinion of counsel for defendant, plaintiff's instruction on the measure......
  • Schillie v. Atchison, Topeka & Santa Fe Railway Co., No. 15135.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 17, 1955
    ...Co., 195 Mo.App. 480, 193 S.W. 963; Friedman v. United Rys. Co., 293 Mo. 235, 238 S.W. 1074; Walker v. Mitchell Clay Mfg. Co., Mo. App., 291 S.W. 180; Blackwell v. J. J. Newberry Co., Mo.App., 156 S.W.2d 14; Haverkost v. Sears, Roebuck & Co., Mo. App., 193 S.W.2d 357; Dill v. Dallas County ......
  • Teitsort v. Illinois Central Railroad Co., No. 27660.
    • United States
    • Missouri Supreme Court
    • March 29, 1929
    ...S.W. 484; Wright v. Wells, 284 S.W. 848; Wair v. Am. Car Co., 285 S.W. 155; Gehbauer v. Bakery Co., 285 S.W. 170; Walker v. Clay Mfg. Co., 291 S.W. 180. (3). Where the railroad had established and maintained a crossing which was in general use, that it was termed a "farm crossing" as distin......
  • Watkins v. Bird-Sykes-Bunker Co., No. 27255.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...S.W. 715; Combs v. Const. Co., 205 Mo. 367; Dayharsh v. Railroad, 103 Mo. 570; Koerner v. Car Co., 209 Mo. 141; Walker v. Clay Mfg. Co., 291 S.W. 180; Corby v. Tel. Co., 231 Mo. 417; George v. Railway Co., 225 Mo. 364; Edmondson v. Hotel Statler, 306 Mo. 216; McCarver v. Lead Co., 216 Mo. A......
  • Request a trial to view additional results

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