Willis v. Buchanan County Quarries Co.

• Citation: 268 S.W. 102
• Decision Date: 29 December 1924
• Docket Number: No. 15139.,15139.
• Parties: WILLIS v. BUCHANAN COUNTY QUARRIES CO.
• Court: Court of Appeal of Missouri (US)

268 S.W. 102

WILLIS v. BUCHANAN COUNTY QUARRIES CO.

No. 15139.

Kansas City Court of Appeals. Missouri.

December 29, 1924.

Rehearing Denied January 19, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by William Willis against the Buchanan County Quarries Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John S. Boyer, of St. Joseph, and Mosman, Rogers & Buzard, of Kansas City, for appellant.

Miles Elliott and Duvall & Boyd, all of St. Joseph, for respondent.

ARNOLD, J.

This is an action for personal injuries alleged to have been received through the negligence of defendant while plaintiff was working in a bin shoveling crushed rock. Verdict was for plaintiff in the sum of $12,500, but the trial court required a remittitur of $5,000, and, after motions in defendant's behalf for a new trial and in arrest of judgment had beer overruled, judgment was entered for $7,500. Defendant appeals.

At the time of the alleged injury defendant was operating a rock quarry and crusher about three miles south of the city of St. Joseph, where plaintiff, a man about 35 years old, was employed as a common laborer. In connection with the crusher a certain bin was maintained," the dimensions of which were 30 to 40 feet in length and from 12 to 15 feet in width. The bin was constructed upon the side of a hill which sloped south. The long way of said bin was north and south, the width being east and west. The bin concerned in this suit was known and designated as No. 3 bin and into it was conveyed from the crusher No. 3 crushed stone, which ranged in size from that of a hen's egg down to small gravel. On the east of No. 3 bin and joined thereto was a second bin known as No. 2, into which larger sized crushed rock was conveyed, known as No. 2 rock. There was no No. 1 bin. The floor of bin No. 3 sloped to the south, and the rock was loaded into trucks or wagons at or under the south end of the bin, through a chute and trap door located at the south end thereof. The bin was constructed of wood, the floor being 2×8 planks, and the sides and ends of boards. Extending across the bin from east to west were two iron rods, designed to brace the sides of the bins and prevent them from spreading. The rock crusher was north and a little east of No. 3 bin and the crushed stone was carried by means of a bucket belt from the crusher over a screen, through a spout, and dumped therefrom at a point nearer the east side but about the center of the bin north and south. The north wall of the bin was from 12 to 15 feet in height, the south wall being lower. The upper edges of the sides thereof were approximately horizontal. Wagons and trucks were loaded through the chute above mentioned at the south end of the bin.

Plaintiff began working for defendant soon after July 4, 1923,. as a common laborer, and continued in such employment until the 23d of August of the same year, on which date the alleged injury occurred. The negligence charged in the petition is:

"That defendant so negligently constructed and maintained the said rock bin that the crushed rock would not run, discharge, and pour entirely from said bin by force of gravity, and so negligently constructed and maintained said bin * * * and the floor of said bin, that the same did not slope sufficiently to permit and cause the said crushed rock therein to pour and discharge therefrom by force of gravity, but so negligently constructed and maintained the said floor of said bin that, while the same was sloping, nevertheless a large quantity of the crushed rock in said bin would frequently remain on the floor thereof when the said chute leading from said bin was opened for the purpose of emptying said bin, and negligently ordered and required plaintiff, in the performance and discharge of his duties for defendant, to get into said bin and stand on said crushed rock on the sloping floor of said bin, and to shovel said rock from said bin into the chute leading therefrom."

It is charged that defendant knew, or by the exercise of ordinary care could have known, that it was dangerous and unsafe for plaintiff to stand on said crushed `rock and shovel same into said chute, but negligently ordered plaintiff so to do; that plaintiff complained to defendant's vice principal and foreman in direct charge and control over plaintiff and over the performance of his duties that such rock on the floor of said bin might slip and move and injure plaintiff if such order were obeyed; that the said foreman and vice principal then and there negligently assured plaintiff that he could with safety obey said order; that, relying on such assurance, and in obedience to said order, plaintiff went into the bin in compliance with said order; that, while so doing, the said crushed rock on the floor of said bin slid, slipped, and moved, and caused plaintiff to fall and be thrown with great force and violence, and to strike upon and against hard objects and substances, by reason and as a result whereof plaintiff was injured as hereinbefore alleged.

The testimony tends to show that, while plaintiff was shoveling the stone as directed while standing on some loose stone, the pile above him on the incline rolled down striking his feet, thus throwing him backward; that his back about the region of `the kidneys struck the lower or south one of the two iron brace rods which ran across the bin as above stated. The answer is a general denial, with pleas of contributory negligence and assumed risk. The reply was a general denial. Trial to a jury resulted as above stated.

There was substantial evidence introduced in plaintiff's behalf, and properly received by the court, to support the allegation in the petition that, by reason of the faulty construction of the bin referred to in the evidence, the floor thereof was without sufficient slant, or pitch, to carry the stone by gravity to the loading chute. There was evidence also tending to show that the construction of said bin in this respect was not such as is ordinarily employed in the building of such bins; and there was evidence that the object and purpose of constructing the with such pitch or incline is that the force of gravity will carry the crushed stone to the loading chute at the bottom thereof.

Appellant contends that the court erred in overruling defendant's demurrer at the close of all the evidence, and in refusing to instruct the jury peremptorily to return a verdict for defendant.

Plaintiff's testimony tends to show that owing to faulty construction of the floor of the bin, to wit, the lack of sufficient pitch therein, it was necessary, when loading crushed rock from the bin, to send a laborer into the bin to shovel the stone toward the loading chute. It was further shown that this was not the usual way to construct such bins; that no provision was made for a safe place on which plaintiff and other laborers engaged in shoveling could stand in safety on or among the stones. Defendant's testimony and argument on this point seem to be directed to the point that plaintiff should have shoveled the stone away so that it would be possible for him to stand on the floor of the bin to do his work; this argument being for the purpose of overcoming the charge of negligence in respect to the construction of the bin. But whether this testimony of defendant was sufficient to overcome plaintiff's evidence as to faulty construction was a question for the jury, and its submission to them was proper.

The rule is well established that it is the master's duty to provide a reasonably safe place for the performance of the duties of the servant. If the master fail to do this, he may not escape liability to an injured servant, unless the place is so glaringly and obviously dangerous that an ordinarily prudent man would not undertake to work therein. Fisher v. Construction Co. (Mo. App.) 263 S. W. 1022; Curtis v. McNair, 173 Mo. 271, 73 S. W. 167; Clark v. Engineering Co. (Mo. App.) 263 S. W. 500; Jewell v. K. C. Bolt & Nut Co., 231 Mo. 177, 132 S. W. 703, 140 Am. St. Rep. 515; Mueller v. Ralston Purina Co. (Mo. App.) 254 S. W. 720; Soltesz v. Provision Co. (Mo. Sup.) 260 S. W. 990.

It is further charged that the court erred in refusing to give defendant's instructions 1-b, 1-c, 1-d, and each of them in the nature of special demurrers, withdrawing from the jury's consideration certain charges of negligence on which issue defendant contends there was no evidence, proving, or tending to prove, a cause of action against defendant., The basis of this contention is that the injury to plaintiff could not reasonably have been anticipated in the usual conduct of the work, and therefore defendant is not liable.

In refutation of this charge plaintiff contends, and properly so, that it is not essential to plaintiff's case that defendant should have anticipated the very injury that occurred, but it is sufficient that an injury of some kind might reasonably be anticipated, and that defendant's negligence was the proximate cause of the injury. Buckner v. Mule Co., 221 Mo. 700, 120 S. W. 766; Dean v. Railroad Co., 199 Mo. 386, 97 S. W. 910; Bliesner v. Distilling Co., 174 Mo. App. 139, 157 S. W. 980. It is not denied that defendant was responsible for the improper construction of the floor bin, which it is alleged caused plaintiff to fall. The proof showed such improper construction. It must be held that such improper construction was the proximate cause of the injury.

This ruling disposes of defendant's fourth assignment of error to the effect that the master is not liable for a condition which was not the cause of the injury to his servant and that the negligence alleged herein was not the proximate cause of the injury.

It is further charged that, under plaintiff's testimony, he assumed the risk and the court should have sustained the demurrer to the evidence. The evidence in plaintiff's behalf tends to show that, on being ordered to go into the bin and...