Wilborn v. Desloge Consol. Lead Co.

• Decision Date: 03 January 1925
• Docket Number: No. 18721.,18721.
• Citation: 268 S.W. 655
• Parties: WILBORN v. DESLOGE CONSOL. LEAD CO.
• Court: Missouri Court of Appeals

268 S.W. 655

WILBORN v. DESLOGE CONSOL. LEAD CO.

No. 18721.

St. Louis Court of Appeals. Missouri.

January 3, 1925.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Philip L. Wilborn against the Desloge Consolidated. Lead Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Marbury & Coffer, of Farmington, for appellant.

Boyer & Threlkeld, of Farmington, for respondent.

ALLEN, P. J.

This is an action for personal injuries sustained by the plaintiff while in the employ of the defendant corporation 'as its servant. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $2,000, and the defendant has brought the case here by appeal.

The petition charges that on August 4, 1921, defendant owned and operated a lead mine at Desloge, in St. Francois county, Mo., and in connection with the operation thereof had caused a large accumulation of chat or tailings to be piled on its land near its mill, defendant having constructed an elevator for the purpose of carrying the chat or tailings from its mill and depositing the same on this "chat pile"; that plaintiff was in defendant's employ as a laborer, working about said mill and chat pile, and that it was the duty of defendant to furnish plaintiff with a reasonably safe place to work and to adopt reasonably safe methods for doing the work which plaintiff was required to do, but that defendant negligently failed to furnish plaintiff with a reasonably safe place to work, and "negligently failed to adopt reasonably safe methods or help to do the work he was required to do in this: That plaintiff was required and directed by the defendant, its agents, and servants in charge of its mill and yards to carry heavy bars of cast iron weighing, to wit, 75 pounds, from the ground, a distance, to wit, 400 or 500 feet upon said tailing or chat pile, and carelessly and negligently failed to furnish the plaintiff a reasonable safe walkway or other means by which to carry said iron bars or with sufficient help, and carelessly and negligently ordered and directed the plaintiff to carry said bars of iron upon said chat pile or tailing when it had other and safer and more convenient means of getting said cast iron upon said tailing or chat pile, so that plaintiff, while in the discharge of his duties under the orders and directions of his foreman, the agent and servant of defendant in charge of said work, and while carrying said bars of iron upon said tailing or chat pile, and on account of the loose condition of the gravel or chat over which he was required to work, and the great weight of the iron bars he was required to carry, and the great straining he was required to do to get said heavy iron upon said tailing or chat pile, and the slippery and insecure condition of said tailings or chats, and insufficient help, plaintiff, while endeavoring to carry said cast iron, sustained a severe rupture to his left side."

And it is alleged that plaintiff's injury was proximately caused by the negligence of defendant: (1) "In not providing a reasonably safe walkway or other means for plaintiff to carry said iron upon said tailing or chat pile"; and (2) "in ordering and directing the plaintiff to carry said heavy iron bars upon and over said chat and tailing where there were other and safer and more convenient means"; and (3) in ordering plaintiff to carry such bars without furnishing him with sufficient help to carry the same with reasonable safety.

The answer is a general denial, coupled with a plea that plaintiff's injury, if any, "was the result of the negligence of said plaintiff directly contributing thereto," and also a plea of assumption of the risk.

Plaintiff's evidence is to the effect that on August 4, 1921, while he was in defendant's employ as a laborer, and engaged in carrying iron bars up a large pile of chat or tailings, he was injured by reason of the slipping of the chat beneath his feet, as alleged in the petition. It appears that the chat pile or dump had become quite large. Plaintiff testified that he carried these iron bars from a point at or near the bottom of the chat pile, a distance of about 700 feet, and that the grade or slope of the inclined surface of the chat pile was about 35 degrees. The elevator or conveyor mentioned in the petition consisted, it is said, of two belts, one about 500 feet in length and the other about 300 feet in length; the chat being dumped by one belt upon the other. The iron bars which plaintiff was required to thus carry are referred to as "laundry irons," and were to be placed in the bottom of troughs at the top of the chat pile, termed "laundries." It appears that the bars were each 4 feet in length, 8 inches in width, and about 7/8 of an inch in thickness, weighing 75 pounds. Testifying as to the manner in which he was injured, plaintiff said:

"I was taking those laundry irons up the dump. I was carrying one up the dump, and, naturally, a man slipping and sliding on loose chat, * * * I slipped, and to keep from falling I throwed myself kinds in that shape (indicating), and tore a hole in my abdomen, my belly; what the doctors call a rupture."

The evidence in plaintiff's behalf is that these bars could be carried to the top of the chat pile by means of the conveyor or belts, which was done at times, but that this necessitated shutting off the "feed" in the mill. And, referring to the day of his injury, plaintiff said:

"They had to have those laundries fixed up that day, and the mill was running, and they wouldn't stop the mill long enough to take the laundries up, and they said we would have to carry them up there."

It further appears that plaintiff had been doing this work, at intervals, for at least five years, during which time, however, the chat pile was increasing in size. Plaintiff said that the pile was getting higher, with more elevation, as well as larger at the base; that "it grew higher more than it did out, because they kept elevating it all the time." Such further reference to the facts and the proceedings below as may appear necessary will be made in the course of the opinion.

The first point made by defendant, appellant here, is that the petition does not state facts sufficient to constitute a cause or action, in that no facts are pleaded constituting negligence on the part of defendant. It is said that, disregarding mere conclusions, "no facts are pleaded showing the walkway up the chat pile is an unsafe place or that an injury thereon could be anticipated by the exercise of ordinary care." But we think that the petition is sufficient to support the judgment. It was not attacked by demurrer below, though defendant objected to the introduction of any evidence thereunder on the ground that the petition does not state a cause of action. This method of attack, by demurrer ore tenus, is not favored, and will not avail, unless the petition is so defective as to utterly fail to state a cause of action. When a petition is so attacked, the sufficiency thereof will be considered as if the pleading were attacked after verdict. W. T. Rawleigh C. v. Grigg et al. (Mo. App.) 191 S. W. 1019. The demurrer ore tenus does not reach mere uncertainty or indefiniteness of averment or the defect of pleading legal conclusions; and when a petition is so assailed it...