Wendt v. Zittlosen Mfg. Co.

• Decision Date: 08 February 1921
• Docket Number: No. 16322.,16322.
• Citation: 229 S.W. 1107
• Parties: WENDT v. ZITTLOSEN MFG. CO.
• Court: Missouri Court of Appeals

229 S.W. 1107

WENDT v. ZITTLOSEN MFG. CO.

No. 16322.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Rehearing Denied April 28, 1921.

Appeal from St. Louis Circuit Court; Karl Kinnel, Judge.

"Not to be officially published."

Action by Annie Wendt against the Zittlosen Manufacturing Company. From judgment for plaintiff, defendant appeals. Affirmed.

Leahy & Saunders, of St. Louis, for appellant.

Frank C. O'Malley and A. H. Heidseick, both of St. Louis, for respondent.

BECKER, J.

Plaintiff had judgment below for $5,000 in her suit for personal damages against defendant. Defendant appeals.

The defendant company, a corporation, is engaged in the manufacture of tents and awnings and metal specialties, and plaintiff while in the employ of the defendant as an operator of a sewing machine on the third floor of the defendant's plant, slipped and fell while walking across the floor, and sustained a fracture of her right pelvic bone, permanently crippling her.

Plaintiff's petition sets up the following assignment of negligence:

"That on said date and for a long time prior thereto, said defendant negligently and carelessly permitted said floor to be, and maintained the same, in a very slippery condition, by reason of which said floor was not reasonably safe to work upon; that said defendant knew, or by the exercise of ordinary care would have known, that said floor was slippery and liable to cause plaintiff to fall thereon while engaged in her duties as such employe, in ample time by having made said floor reasonably safe by the exercise of ordinary care, and to have prevented the injury complained of herein."

The answer consisted of a general denial, together with a plea of contributory negligence, and the further plea that plaintiff assumed the risk of walking upon said floor.

Plaintiff, at the time she met with her injuries, was 28 years of age, and had been in the employ of the defendant company for a period of 5 years. In the room in which she worked some 18 or 20 sewing machines were set up in a row along the south side thereof; between the machines and the said south wall there was an aisle, some 3 feet wide. The girls sat with their backs to the windows in said wall. The machine at which plaintiff worked was situated about 15 feet from a cutting table, to which, during the course of her work, it was necessary for her to go to get the material for making the strings, or bands, which she sewed upon her machine.

On the occasion in question, shortly after 1 o'clock in the afternoon, plaintiff left her machine and walked to the cutting table for the purpose of getting some material, and to use her own language:

"When I had walked along and never saw anything on the floor, my feet slipped out from under me, and I must have slid several feet before I finally fell and struck the floor, and I fell on my right side."

According to plaintiff's own testimony she was proceeding in an ordinary walk at the time, and in answer to the question, "You were walking carefully?" she answered, "Yes, sir." As to the floor, plaintiff testified:

"I saw it to be slippery but never thought it v as dangerous to walk on, but I knew it was a slippery floor."

Plaintiff further testified that the floor was a smooth wood floor without any oil, paint, or wax upon it; that prior to the time she had fallen and met with her injury, she had known of other employes slipping upon the floor, and plaintiff mentioned in particular two employes who had slipped and fallen, though the fall had not in either case resulted in any injury.

Several witnesses for plaintiff corroborated her testimony to the effect that the floor was smooth and slippery. Among the witnesses was one Mamie Mueller, who testified that she had been in the employ of the defendant company for a period of 11 years, the last 6 of which she was forelady in charge of the girls on the third floor; that plaintiff was one of the girls who worked under her, and that she was on the floor at the time plaintiff met with her injury. This witness testified that the work that was done upon said floor was the sewing of tents and awnings and "all kinds of paraffine work, government horse blankets." This witness further testified that after the work "was finished I would drag it away from the machine and inspect it, * * * dragging it along the floor," and that she dragged the work over the place where plaintiff had fallen. This witness described the "paraffine goods" as being "a kind of waxed goods they used more for horse covers." These paraffine goods were dragged over the floor the same as the tent and awning material; that, however, the defendant did not have any of the "paraffine work" very often; that the last of that kind had been some three or four weeks prior to the day upon which plaintiff met with her injury. This witness further testified that she had herself slipped many times upon this floor, but had only fallen once.

On cross-examination she testified that during all of the 11 years that she was employed by the defendant company, and during all the time that plaintiff was employed there, the same method of pulling the canvas across the floor from the machine up to the cutting table was in vogue.

On redirect examination the witness stated that she had, during the course of her employment for the defendant, worked at another plant of the company than the one in which plaintiff met with her injury, and in answer to the question, "Did they have any slippery floors there?" she answered, "No, sir, and they did the same kind of work there." "No slippery floors there?" "No, sir."

John Herslik also testified for plaintiff that he had been in the employ of the defendant, having left their employ, however, perhaps a year before the day in question; that he was familiar with the condition of the floors in the building, and that they were slippery and particularly so on that part of the floor where the canvas was dragged over it. When asked whether or not he had ever slipped upon the floor, he answered: "I slipped a number of times, but I didn't fall exactly and hurt myself."

Of the several witnesses who testified for the defendant, one Miller testified that he was the superintendent for the defendant company, and that he examined the floor in question on the day that plaintiff fell, and that the floor was in "the regular condition as it always is"; that the floor was made of yellow pine; that it was clean; and, in answer to the question as to whether it was slippery, answered, "No, sir." He stated that during the 14 years he had worked for the company, excepting plaintiff, he had never known of any one falling and hurting themselves upon the floor.

Ruth Bernard testified she had worked for defendant company for 7 years, and had worked on the same floor with plaintiff, and was there on the day when plaintiff met with her injury; that during all the time she worked for the defendant company she never knew of any one, excepting plaintiff, falling upon the floor and hurting themselves.

James E. Garstang testified for defendant to the effect that he was resident counsel for the defendant company; that he knew the construction of the building and the particular floor upon which plaintiff was working at the time she met with her injury; that the floor was made of edge-grain yellow pine, and that on the day in question the building was between 6 and 7 years old; that he examined the floor on that very day shortly after the accident, and found the floor to be "a smooth and clean floor, with no foreign substances upon it—perfectly dry; * it was not slippery."

Adolph Meyer, vice president of the defendant company, testified that the condition of the floor on the day that plaintiff fell thereon was no different than the condition of the floor for several years prior thereto; that he had never known of any one injuring themselves by falling on any of the floors of the company's buildings; "the floors were always dry, clean, and smooth."

William Wetteroth testified that he was the manager of the Missouri Tent & Awning Company, a business similar to that of the defendant; that he had seen the floors, in the plant in question, of the defendant company, and that the floors are the kind that it is customary to use in that sort of business; that this character of business requires that the floor "should be...