Watkins v. Bird-Sykes-Bunker Co.

• Decision Date: 05 April 1929
• Parties: Benjamin S. Watkins v. Bird-Sykes-Bunker Company, Appellant
• Court: Missouri Supreme Court

16 S.W.2d 38

322 Mo. 830

Benjamin S. Watkins v. Bird-Sykes-Bunker Company, Appellant

Supreme Court of Missouri

April 5, 1929

Appeal from Jackson Circuit Court; Hon. Charles R. Pence Judge.

Reversed.

Lowell R. Johnson, Henry M. Shughart and Charles M Miller for appellant.

The trial court erred in refusing defendant's peremptory instructions, requested at the close of plaintiff's evidence and at the close of all the evidence. (1) The evidence disclosed no actionable negligence against defendant. (2) The negligence of plaintiff bars recovery. Hughes v. Railroad, 309 Mo. 560; Unterlachner v Wells, 296 S.W. 756; Beard v. Hubinger Bros. Co. (Ia.), 141 N.W. 418; Railroad v. Andrews, 171 Ala. 200; Boucher v. Paper Co. (Me.), 96 A. 833; Greene v. Miller, 204 N. W. (Mich.) 722; Clark v. Wheelock, 293 S.W. 456; Kube v. Coal Co. (Mo. App.), 209 S.W. 614; Kellerman v. Tel. Co., 189 Mo.App. 506; Forbes v. Dunnavant, 198 Mo. 193; Rogers v. Packing Co., 185 Mo.App. 99; Watson v. Lime Co. (Mo. App.), 290 S.W. 649; Chandler v. Lead Co. (Mo. App.), 178 S.W. 217; Knorpp v. Wagner, 195 Mo. 637.

Ira B. Burns, Paul T. White and A. J. Stanley for respondent.

The trial court did not err in refusing defendant's peremptory instruction. Rogers v. Teagarden, 185 Mo.App. 99; Stauffer v. Railway, 243 Mo. 316; Compton v. Const. Co., 287 S.W. 480; Baird v. Railway Co., 146 Mo. 281; Blanton v. Dold, 109 Mo. 75; Watson v. Const Co., 286 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.App. 370; State ex rel. Greer v. Cox, 274 S.W. 373; Tabor v. Bolt & Nut Co., 274 S.W. 911; Patrum v. Railroad, 254 Mo. 109; Haggard v. Railroad Co., 205 Mo.App. 7; De Late v. Wiles, 213 S.W. 885.

Henwood, C. Davis, C., concurs; Cooley, C., not sitting.

OPINION

HENWOOD

Benjamin S. Watkins, as plaintiff below, obtained a verdict and judgment in the sum of $ 12,500 for personal injuries suffered by him while employed by defendant as an automobile mechanic and while working under an automobile in defendant's used automobile department in Kansas City, Missouri. The case is here for review on defendant's appeal.

The petition contains numerous specifications of negligence, in connection with the general allegation that defendant failed to furnish plaintiff a reasonably safe place to work and reasonably safe appliances with which to work, but plaintiff submitted his case upon two of these specifications only: first, "defendant negligently failed to furnish blocks or timbers in sufficient number for blocking up said automobile so as to be reasonably safe to work thereunder;" second, "the place where plaintiff was working was dark and with insufficient light for plaintiff to see that the blocks or supports were properly and securely placed under said automobile and on one another or to see when the said automobile or said blocks had slipped or moved from under the wheels of said automobile."

The answer is a general denial, coupled with a special plea that plaintiff's injuries were caused or directly contributed by his own negligence in failing to exercise ordinary care for his own safety.

The reply is in conventional form.

In view of our conclusion that plaintiff failed to make a case for the jury, it will be necessary to consider only the evidence relating to the specifications of negligence above mentioned. With reference thereto, plaintiff's testimony (allowing for some alterations) is stated in his brief as follows:

"Plaintiff to sustain his case, testified that at the time of receiving his injury, on February 21, 1923, he was thirty-seven years of age, and had been employed by the defendant as an automobile mechanic since July, 1922. He had previously worked for other companies as an automobile mechanic for seven years, and, prior to that time, had been employed as a railroad car carpenter and repairer. He did the general run of automobile mechanical work. Harry McFall was service manager for defendant, and Carl Hallen was his foreman. Defendant was agent for Paige and Jewett automobiles in Kansas City, Missouri, and maintained their sales room and service station equipment at 24th and McGee Streets, and six and one-half blocks away, at 1729-31 McGee, they had a used car branch. The used car branch was housed in a building that faced west, and was composed of a main floor, an upstairs and a basement. The basement ran from the street to the alley and had no outside windows except a coal chute window, which opened into the furnace room on the east end of the basement. There were no windows from the furnace room into the basement. The basement was one hundred and four feet long from the street to the stairway in the rear. In the southeast end of the basement was an elevator shaft, just north of the elevator was a stairway, north of the stairway was a wash rack, and east of the wash rack was the boiler room and coal room. The stairway was boarded up. The day of the accident was the first time plaintiff was ever in the basement. The defendant has no repair shop in the basement. On the day of the accident, he reported for duty at the defendant's place of business, at 24th and McGee, at about eight A. M. Shortly after reporting for work, his foreman told him to go to the used car place to do some electrical work. He got his box of tools, and another employee hauled him up to the used car place at 1729-31 McGee. He had been up there only once before, when he was sent up there to put some light bulbs on the main floor. Defendant had occupied the building at 1729-31 McGee only since about January 1, 1923. When he first got there, he reported to a salesman, Dooley, who referred him to McKinney. McKinney told him to work on a car standing on the main floor; to take the knock out of the motor. He first objected because he was told to do electrical work. McKinney told him to 'do it or else.' He understood this to mean to do it or be discharged. The car was a Paige five-passenger touring car. He then asked McKinney where to do the work, and McKinney told another employee, Peterson, to take the car to the basement and get the stuff to work with. Peterson was employed as a mechanic at the used car place. Peterson put the car on the elevator and took it to the basement, and he walked down the stairway, getting there first, with his tool box of wrenches, spanners, chisel, etc. Peterson edged the car around and headed it against the north wall, four to six feet from the wall and at the west edge of the wash rack. The basement was filled with used cars except a small place where Peterson placed the car in question. While Peterson was placing the car, he looked around for jacks, hoists or something to raise the car. Peterson told him of a jack underneath another car, and he got it. There was only one light in the basement. It was about fifteen feet east of the car, and of fifty or sixty candle-power. There were no bulbs in any other light socket. He looked for other lights and found none. He asked Peterson for blocks, to block the car with. While Peterson was getting them, he drained the oil from the car. Peterson threw down an armload of blocks and said that was all they had, and then left, and he didn't see Peterson any more that day. He had his drop cord light with him. The drop cord light had a fifty or sixty candle-power bulb on it, with wire cage around it. He hooked this cord up with an empty socket in the ceiling at the place indicated by Peterson. There was no natural light in the basement. He examined the blocks brought by Peterson and found them to be six so-called 4 x 4 (actual measurement 3' x 3' or 3 1/2' x 3 1/2') twelve to fourteen inches long. There was a pile of scrap lumber, box lumber piled against the wall and he could find nothing to use in it. He then went upstairs and asked for a phone, but they had none. McKinney was gone. He then went back to the basement and put the jack under the front end of the car and jacked it up equivalent to the space of two blocks. Then he put two blocks, one on top of the other lengthwise, under each of the front wheels and then lowered the car onto the blocks. He then took the two remaining blocks and put one in front of and the other to the rear of the right rear wheel, and also set the emergency brake before jacking the car up. The brake worked all right. When he first came, McKinney asked him to have the car ready for demonstration after noon. He arrived about 8:30 A. M. He diagnosed the knock as due to loose bearings. To take up the bearings, the oil had to be drained. He took down the crank case, so as to get to the bearings underneath. He took off half of the loose bearings, and took out the shims, in order to make the bearings fit. The bearings are connected to the crank shaft. It was a six-cylinder car. After jacking up the car, he took down the crank case. To do this, he had to get under the car. It took about ten minutes to take off this crank case. He then started to work on the bearings, starting on the front bearing. He was lying more on his side. He had worked about one and a half hours before he was hurt. He had taken up two or three bearings. In doing the work and after taking up a bearing, he would get out from underneath, go around to the front, take the crank and crank the car over, to see how tight he had that bearing and turn the next bearing over where he could get to it. Each time he took his service light and examined the blocks underneath the wheel. While he was working, he had his extension light underneath the car where he was working. Dirt fell off the bottom of...