Weber v. Valier & Spies Milling Co.

• Citation: 242 S.W. 985
• Decision Date: 06 June 1922
• Docket Number: No. 17092.,17092.
• Court: Court of Appeal of Missouri (US)
• Parties: WEBER v. VALIER & SPIES MILLING CO.

242 S.W. 985

WEBER v. VALIER & SPIES MILLING CO.

No. 17092.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Rehearing Denied June 20, 1922.

of fact for the jury; the cause of injury being a matter of conjecture.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

"Not to be officially published."

Action by Audrey Weber, an infant, by George Weber, next friend, against the Yeller & Spies Milling Company for damages for the death of plaintiff's father, Edward B. Weber. Judgment for plaintiff, and defendant appeals. Reversed.

Willard H. Guest and C. P. Berry, both of St. Louis, for appellant.

Walther, Muench & Hecker and Emanuel Weil, all of St. Louis, for respondent.

BECKER, J.

This Is an action by the infant daughter of Edward B. Weber for damages for the death of her father, which occurred while he was in the employ of the defendant.

The petition charges that the defendant was engaged in the operation of a flour mill in the city of St. Louis, and that plaintiff's father on June 17, 1919, was in defendant's employ in the capacity of a flour packer. The petition further charges that defendant, contrary to the provisions of the statutes of Missouri, maintained openings in the third floor of its mill building, through which a man hoist was operated, without protecting the said openings with trapdoors or guards, and that defendant negligently permitted the floor of the mill around said man hoist openings to become covered with flour, and the same was therefore slippery and dangerous; that plaintiff's father, while lawfully on the third floor of the mill, by reason of the slippery condition of the floor and by reason of defendant's failure to guard said openings or holes in the floor, fell through one of the said holes and struck his head, fracturing his skull at the base, from the effects of which he died.

The answer admits the employment by defendant of plaintiff's father, and, after a general denial of the other allegations of plaintiff's petition, pleads contributory negligence and also assumption of risk.

The reply is a general denial.

There was no eyewitness to the occurrence.

The evidence showed that upon each of the four floors of the building there is an inclosed room approximately 12 by 14 feet; the rooms on the several floors being located directly above each other. This tier of rooms incloses a man hoist or belt elevator and a concrete stairway; the stairway being built along the sides of the room. The openings in the floors through which the stairway runs are guarded by iron railings 3 feet in height. In the center of the floors in these rooms were two circular openings, through which a perpendicularly revolving belt ran. Attached to this belt were small platforms or movable steps upon which a person desiring to be taken up or dow by the hoist would stand, stepping upon the same while the belt was in motion. The holes in the floor are of a circumference which permits the passage of the belt placed at the center of the opening, the width of the platform or step fastened to the belt, which is 12 inches, and a space of 11½ inches between the step or platform on the belt and the outer edge of the circular opening. A photograph of a man hoist or elevator of the kind in question, as well as a photograph of the room on the second floor in defendant's mill where the body of the plaintiff's father was found, are attached to this opinion.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There are several doors leading into the said several stairway and elevator rooms. The distance in the room on the third floor from the outer edge of the east hole to the door leading into the room where the lavatory is located is 9 feet 10 inches. There is an iron rail at the back or south side of the holes, and rails on the east and west sides, which do not, however, extend northwardly as far as the outer edge of the holes. This railing is about 3 feet high, and, as shown by the photographs, is, in fact, a guard for the stairway. There is no guard or rail of any kind in front of the opening. The steps or platforms on the belt are about 20 feet apart, and above each platform is an Iron bar fastened to the belt, intended for a handhold for the person riding on the step.

The testimony for plaintiff shows that on June 17, 1919, the father of plaintiff was working on the night shift as a packer on the first floor of defendant's mill. The men on the night shift started to work at 11 o'clock p. m., but on the night in question Weber employed a substitute, who took his place until he arrived, which was at 2 o'clock in the morning. Charles O. Gieseler, who worked at the same machine with Weber, testified that, when Weber arrived at 2 o'clock and the substitute departed, there was no flour in the chute to pack, so he and Weber sat on the bench near their machine and talked and joked, waiting for the ringing of the bell, which was the signal for them to begin packing again. Weber did not complain of being sick, nor was he under the influence of liquor, but seemed to be in his usual condition, talking and joking in his customary manner. After they had been sitting on the bench a while Weber told Gieseler, he was going to the toilet, and he left the packing room, going out at the door which leads into the elevator room. There is a lavatory in the basement and also on the third floor, and the men from the packing room used either; the lavatory on the third floor being used by them about as much as the one in the basement. Although Gieseler remained in the packing room at his machine, Weber did not return, and witness did not see him again until he was carried out of the mill through the packing room between 6 and 7 o'clock in the morning.

According to Leo Hess, a witness for plaintiff, who was employed upon the third floor in what is called the "dumping" room, Weber passed through that room between 2 and 3 o'clock, spoke a few words to the witness and another fellow workman, then went to the toilet located in the same room, stayed there several minutes, spoke to them again, and, saying he must go, passed out of the room, going through the door leading into the elevator or stairway room. There was no way to go to the lavatory on the third floor except through this elevator and stairway room.

This witness also stated that Weber was in his usual condition, and that there was nothing unusual in his appearance at the time. The witness did not see Weber again after he passed into the elevator or stairway room, until about 6:35 a. m., when witness was called to the second floor and found Weber lying on the floor on his back. He was lying beyond the west opening in the floor through which the ascending belt passes. Weber was not lying in front of the stairway, but over about midway between the stairway and the opening, about a foot away from the railing. His head was towards the stairway or back wall.

Weber never regained consciousness. He was taken to the hospital, where the attending surgeons discovered that he had suffered a fracture at the base of the skull, from which he died.

The contention of the plaintiff in the trial court was that, from the foregoing facts shown in evidence, a reasonable inference was to be drawn that the deceased in coming out of the room where the lavatory was located had fallen into the unguarded opening of the ascending belt, and in his descent, and before reaching the second floor, had been caught by one of the steps or platforms of the belt, and in that way thrown out onto the floor of the second story.

The trial court took that view of the matter and refused defendant's instruction in the nature of a demurrer to the evidence.

For the defense Joe Amtmann, an employé of defendant, testified that he had seen Weber on the third floor at the time referred to by plaintiff's witness Hess, and had seen him later at about 5:45 a. m., on the first floor; that at that time Weber was standing next to Gieseler, the witness for plaintiff who worked at the same machine with Weber, and who had testified that Weber had not returned to the packing room on the first floor after he left to go to the toilet. This witness, on cross-examination, admitted that in his testimony before the coroner at the inquest held the next day after Weber died he had made no statement about having seen Weber at 5:45 a. m. on the first floor, but explained that he had not been asked regarding that.

Another witness for defendant, Edward Adler, stationary engineer at defendant's plant, and a brother of William E. Adler, superintendent for the defendant, testified that he saw Weber on the night in question when he came to work, and that Weber visited him in the engine room every half hour during the night, his last visit being at about 5:45...