Walker v. Mitchell Clay Mfg. Co.
| Decision Date | 11 January 1927 |
| Docket Number | No. 19576.,19576. |
| Citation | 291 S.W. 180 |
| Court | Missouri Court of Appeals |
| Parties | WALKER v. MITCHELL CLAY MFG. CO. |
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.
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.
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 injury while using the gangway in question in the course of his employment. Sabol v. St. Louis Cooperage Co. (Mo. Sup.) 282 S. W. 425; Spindler v. American Express Co. (Mo. Sup.) 232 S. W. 690; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S. W. 800; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S. W. 69. It was defendant's duty, however, to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work. Jablonowski v. Modern Cap Mfg. Co. (Mo. Sup.) 279 S. W. 89; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226, 237 S. W. 779; Newell v. St. Louis Transfer Co., 205 Mo. App. 543, 226 S. W. 80; Eudy v. Federal Lead Co. (Mo. App.) 220 S. W. 504; Schulte v. Carmichael-Cryder Co. (Mo. App.) 282 S. W. 181. Furthermore, this duty of defendant was a continuing one, which did not end merely with. furnishing plaintiff a gangway which was reasonably safe at the time first provided. Knight v. American Mfg. Co. (Mo. App.) 264 S. W. 89; Brown v. American Car c Foundry Co. (Mo. App.) 271 S. W. 540; Bodenmueller v. Columbia Box Co. (Mo. App.) 237 S. W. 879.
In the case at bar defendant appreciated ,that the use of heavy trucks would damage the floor, and for that reason had constructed the gangway in question; but, as might be expected, the boards comprising this gangway from time to time became worn and splintered. Defendant seems to have recognized its duty to exercise ordinary care to maintain this gangway in a reasonably safe condition, and had employed a carpenter, whose duty it was to make such repairs thereon as became necessary. The particular part of the gangway upon which plaintiff was injured had been "all busted up" for at least nine days, and timely complaint as to such condition had been made to defendant. The necessary repairs had not been put in place, however, and plaintiff's injury was received as the direct and proximate result of the splintered condition of one of the boards. It seems clear to us, therefore, that there was substantial evidence of all the elements essential to make out a case of actionable negligence against defendant for failure on its part to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to, work.
In opposition to the above conclusion, defendant relies (as well it may) almost wholly upon the ease of Wendall v. Chicago & A. R. Co., 100 Mo. App. 556, 75 S. W. 689, decided some years ago by our Brethren of the Kansas City Court of Appeals. In that case a wooden platform, "constructed three Or four months previous to the accident out of three by ten inch yellow plank, * * was in a more or less splintery condition—a condition brought into existence by exposure to meteorological vicissitudes and the constant trundling done over it." Wendall ran a splinter from the platform into his shoe in much the same manner as did plaintiff in the instant case. It was held that the happening...
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