Wuellner v. Crescent Planing Mill Company

• Decision Date: 07 March 1924
• Docket Number: 23517
• Citation: 259 S.W. 764,303 Mo. 38
• Parties: CHRIST F. WUELLNER v. CRESCENT PLANING MILL COMPANY, Appellant
• Court: Missouri Supreme Court

259 S.W. 764

303 Mo. 38

CHRIST F. WUELLNER v. CRESCENT PLANING MILL COMPANY, Appellant

No. 23517

Supreme Court of Missouri

March 7, 1924

Motion for Rehearing Denied March 7, 1924.

Appeal from St. Louis City Circuit Court; Hon. Wilson A Taylor, Judge.

Affirmed.

A. & J. F. Lee and James A. Waechter for appellants.

(1) Defendant's demurrer to the evidence should have been sustained, because (a) The plaintiff failed to make out a case against the defendant, because the evidence totally failed to establish that his injuries resulted from a cause for which defendant was responsible. (b) The plaintiff assumed the risk of any injury to himself under the conditions present, and no liability attached on the part of the defendant. (c) Plaintiff was guilty of contributory negligence as a matter of law, and a recovery should be precluded. (d) The dual capacity doctrine prevails in this State. Hicks v. Packing Co., 184 Mo.App. 672; Haggard v. McGrew, 100 S.W. 1072; McGinnis v Brick Co., 261 Mo. 287; Lawless v. Gas Light Co., 72 Mo.App. 679; Knorpp v. Wagner, 195 Mo 637; McDermott v. Railroad, 87 Mo. 288; Descher v. Railroad, 200 Mo. 310; Jones v. Cooperage Co., 134 Mo.App. 324; Schmeizer v. Furniture Co., 134 Mo.App. 500; Gunn v. Hemphill Lbr. Co., 218 S.W. 978; Bradshaw v. Standard Oil Co., 199 Mo.App. 692. (2) Plaintiff's Instruction 1 (purporting to cover the entire case and direct a verdict) is erroneous in a number of particulars. (a) It assumes contoverted facts; (b) It is confusing and misleading; (c) It is not warranted by the evidence; (d) It is broader than the pleadings and the proof; (e) It purports to cover the whole case, and has omitted necessary elements requisite to the right of plaintiff to recover; (f) Its errors were not and could not be cured by any other instruction given in the case. Gunn v. Hemphill Lumber Co., 218 S.W. 978; Parker v. Drake, 220 S.W. 1000; Stumpf v. United Railways Co., 227 S.W. 855; Yarde v. Hines, 238 S.W. 153; Spaulding v. Lumber Co., 183 Mo.App. 648; James v. Railway, 107 Mo. 484; Krehmeyer v. Transit Co., 220 Mo. 139; Small v. Ice Co., 179 Mo.App. 464; Haas v. Car & Foundry Co., 176 Mo.App. 314; Burrows v. Likes, 180 Mo.App. 447; Degonia v. Railroad, 224 Mo. 564; Riley v. City of Independence, 257 Mo. 671; Sparkman v. Wabash Railroad Co., 191 Mo.App. 478; Rutledge v. Swinney, 170 Mo.App. 251, 264; Goranson v. Manufacturing Co., 186 Mo. 307; Dority v. Railroad, 188 Mo.App. 365, 374; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. 571; Ganey v. Kansas City, 259 Mo. 654, 663; Wease v. Tool Co., 178 Mo.App. 719; Rouse v. Fire & Marine Ins. Co., 203 Mo.App. 603; Hall v. Coal & Coke Co., 260 Mo. 351; Walker v. White, 192 Mo.App. 13, 18. (3) The verdict is excessive. Varley v. Columbia Taxicab Co., 240 S.W. 218; Yost v. Railroad, 245 Mo. 219; Johnson v. Coal Co., 205 S.W. 615; Hurst v. Railroad, 219 S.W. 566; Hollenback v. Railroad, 141 Mo. 97; Brady v. Railroad, 206 Mo. 509.

Edward W. Foristel and O. J. Mudd for respondent.

(1) The evidence by plaintiff (aided somewhat by defendant's evidence) made a prima-facie case, entitling plaintiff to go to the jury, and called for the overruling of the demurrer to the evidence. Sweet v. General Electric Co., 165 A.D. 935; Whitworth v. Shurk, 197 Mo.App. 404; Blundell v. Manufacturing Co., 189 Mo. 552; Hildman v. Manufacturing Co., 249 S.W. 99. (2) The ladder in question was produced in court, exhibited to the jury and set up before it, as an exhibit and a demonstration of the manner of its position when plaintiff ascended it. This was demonstrative or sight evidence on which the court and jury had a right to make an inference of negligence on the part of the defendant. But that evidence is not brought here on the record, and for that reason, too, this court should not adjudge the evidence insufficient to carry the case to the jury. Higgins v. Pulley Co., 240 S.W. 256; Huss v. Bakery Co., 210 Mo. 44, 50; Blankenship v. Paint & Glass Co., 154 Mo.App. 483, 490; Tatum v. Laundry Co., 201 Mo.App. 100. (3) If the defendant was negligent on any ground laid in the petition and danger and risk supervened on that negligence, such risk and danger was not assumed by the plaintiff. Williams v. Pryor, 272 Mo. 613, 621; Williamson v. Light & Power Co., 281 Mo. 544. (4) Even if plaintiff was acquainted with the conditions under which he ascended the ladder and went to work upon it, and knew that there was danger because of those conditions, yet, unless his usage of the ladder was so glaringly threatening and dangerous that no prudent person would attempt it, plaintiff was not guilty of contributory negligence as a matter of law. Albrecht v. Belting Co., 252 S.W. 43; Williamson v. Light & Power Co., 219 S.W. 902; Burkhard v. Rope Co., 217 Mo. 466, 480; Kaemmerer v. Wells, 252 S.W. 732; Jewell v. Bolt & Nut Co., 231 Mo. 176, 199; Drycz v. Packing Co., 194 S.W. 765, (5) But as the master was present in the person of its foreman and directed plaintiff to use the ladder, as he did (and this is clearly proven), this was equivalent to an assurance of safety, and plaintiff had the right under such circumstances to defer somewhat to the judgment of Bohle in going upon the ladder and was, therefore, in obeying the immediate and direct commands of the master not guilty of contributory negligence as a matter of law. Bloomfield v. Construction Co., 118 Mo.App. 254, 259; Smith v. Kansas City, 125 Mo.App. 150, 157; Herdler v. Stove and Range Co., 136 Mo. 3, 17; Erwin v. Telephone Co., 173 Mo.App. 508; Buckner v. Horse and Mule Co., 221 Mo. 700, 709; Whitworth v. Shurk, 197 Mo.App. 404, 413; Gilbert v. Hilliard, 222 S.W. 1029. (6) Instruction 1 given on behalf of plaintiff is not reversible error in that it submits to the jury the assurance of the foreman with respect to holding the ladder, although such assurance be not supported by evidence. Because without this (the predicate of the assurance) the instruction required the jury to find other facts sufficient to create a liability for culpable negligence. Wolff v. Payne, 241 S.W. 919; Callicote v. Railway Co., 274 Mo. 689; Gaty v. Sack, 19 Mo.App. 470, 477; Wright v. McPike, 70 Mo. 175, 180; Drummond Investment Co. v. Trust Co., 178 S.W. 482; Foster v. Davis, 252 S.W. 436; Doerr v. Fire Ins. Co., 253 S.W. 39; Milling Co. v. Fire Ins. Co., 219 S.W. 671; Grantman v. Oil Co., 224 S.W. 1014.

Small, C. Lindsay, C., concurs.

OPINION

SMALL

Plaintiff was seriously injured by reason of a ladder slipping and falling with him while he was working for defendant in its planing mill in the city of St. Louis. He obtained a verdict for $ 8000, from which defendant duly appealed.

Plaintiff's evidence tends to show: That the ladder slipped from under him, while he was standing thereon repairing some sliding doors, because the ends of the ladder resting on the floor were smooth and had no spikes or nails in them, or they were worn smooth, and the floor was smooth and slippery and vibrated somewhat from the operation of the machinery. That this condition of the ladder and the floor had existed for several years, and was known to the plaintiff and to the defendant's foreman, who had ordered the plaintiff to procure the ladder and assist in repairing the doors. That the foreman held the ladder at the bottom to keep it from slipping, when the plaintiff went up the ladder, and for a few minutes after he had ascended and was endeavoring to replace one of the small wheels at the top of the doors, but that he released his hold on the ladder, while the plaintiff was so doing, and left it without anything to prevent it from slipping and falling, and that very shortly thereafter the ladder fell with the plaintiff, and he was injured.

Plaintiff, among other things, testified: "Mr. Bohle was may foreman. He is manager and boss. He has got the control. When they (the doors) were knocked off, he came down to the main bench and said: 'Take the ladder and go over there. I will get the boy down.' So we got the job finished and got the door shut again. I brought the ladder the same time he went up there and got help. After I got the ladder, Bohle told me to go and fix that. He had an iron bar in his hand standing alongside there, and had the boy, and the boy held the door so the door didn't slip down. I set the ladder down there where I had to use it. I set it down good. The ladder was about eleven feet long. The bottom of the ladder was about three feet from the wall. The foreman was standing alongside of me with his left hand on the ladder when he told me to go up there. I took a hammer and a wheel and went up about seven steps, that was high enough to get there. When I had my hands there, trying to get the wheel in there, then the ladder started to slip. I tried to catch myself, but I couldn't hold on on account of there being nothing but the wall, and I held myself on the ladder to save myself. It slipped all the way down." And plaintiff fell to the floor and sustained a broken leg and other severe injuries.

On cross-examination, plaintiff stated: That he had worked continuously at this plant for twenty years. Bohle had been his foreman four or five years. Two years before the injury a new yellow-pine floor had been put down. He worked almost every day on that floor; no change in it these two years. He helped put in the floor. It was planed -- dressed on both sides. There were two sliding doors; they had been knocked down by some laborers striking them with a truck. He was working about seventy-five feet away from the doors. Bohle came over and told him both doors had been knocked down. The foreman said he would go upstairs and get the boy down. Plaintiff went and got the ladder. He used that same ladder for years. Never had...