Yeck v. Adams
| Decision Date | 12 June 1933 |
| Docket Number | No. 17647.,17647. |
| Citation | 61 S.W.2d 228 |
| Parties | YECK v. ADAMS et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.
"Not to be published in State Reports."
Action by Hubert Yeck against W. E. Adams and others. From a judgment for plaintiff against defendant named, defendant named appeals.
Affirmed.
Walter Calvin, of Kansas City, for appellant.
Trusty & Pugh and Allan Browne, all of Kansas City, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,500.00, and defendants have appealed. After the cause reached this court, plaintiff dismissed as to the defendant, Mrs. W. E. Adams. The sole remaining defendant, W. E. Adams, will be hereinafter referred to as the defendant.
The facts show that plaintiff, a boy about 17 years of age, was injured on October 5th, 1928, by falling into an empty cistern upon the premises of the defendant and his wife, resulting in the fracturing of his skull. In the month of May or June, 1928, defendant commenced the construction of a house upon a lot belonging to himself and his wife, located in Dallas, in this state. In constructing the house the basement was excavated and a cistern was dug three or four feet south of a porch on the south side of the house. In excavating the basement and digging the cistern the dirt was placed in piles upon the lot on which the house was built. At the time of plaintiff's injury there was a pile of dirt about two and one-half or three feet in height, starting at the porch to the east of the cistern and running in the form of a horse shoe to the cistern and back again to the porch on the west side of the cistern. The ridge of dirt sloped gradually on the outside and steeper on the inside. The cistern was lined with brick and plastered with cement. It was about 16 feet deep and four or five feet in diameter at its top. The neck of the cistern extended from 10 to 18 inches above the natural level of the ground.
At the time plaintiff fell into the cistern the dirt around it had not been leveled off, nor was there any permanent top placed upon it, but it had remained in its unfinished state for about two months. There had been placed upon the top of the cistern over its opening some pieces of tin or corrugated iron.
It appears that at the time plaintiff was injured the house was about completed excepting the work of cementing the basement floor. One Miller had contracted with the defendant to do this work. The day before plaintiff was injured Miller employed plaintiff to assist in the cement work. Plaintiff arrived at the house about nine o'clock a. m. At that time Miller and one Boone, Miller's helper, and the defendant, were in the basement. They had been putting in the forms for the concrete work and had most of the forms in and were waiting for the cement to arrive.
Defendant testified that he was helping Miller, "showing him what to do," when plaintiff arrived; that defendant had nothing to do with the work itself, but he was in the basement, "discussing and perhaps showing him (Miller) where to place the forms to hold the concrete"; that when plaintiff arrived and was waiting to go to work, the witness "supposed he (plaintiff) was going to help Miller." "I thought maybe Miller had hired him."
Plaintiff testified that upon his arrival at the premises he entered the basement through a door in the west wall of the foundation, (and so far as the testimony shows, that was the only entrance to the basement), and stood around for 15 or 20 minutes waiting to go to work, the cement not having yet arrived; that Miller gave him no directions but that, ; that defendant did not tell him anything about the presence of the cistern; that when he went out of the door he found a path leading around the south side of the house, which he followed; that he noticed a number of piles of dirt and short pieces of lumber and strips of tin laying about all over the yard; that in going over the path he came to a piece of tin upon which he stepped resulting in the tin giving way and his falling into the cistern. He testified that when he was going around the south side of the house he saw a lot of piles of dirt and that he walked over some of the dirt in going to the place where he fell; that he did not suspect the presence of the cistern under the tin that gave way and that the cistern was not barricaded in any manner. He further testified that the top of the cistern was somewhat higher than the surrounding ground but that the edges of the tin were bent down in such a way as to be level with the ground.
Defendant insists that his instruction in the nature of a demurrer to the evidence should have been given. This point is argued largely from the standpoint of defendant's evidence, in which connection it is pointed out that plaintiff's testimony at the trial was contradictory by reason of the fact that, in an abandoned pleading, he alleged that he fell into a cistern under the porch, while walking over the latter; that he admitted that he had not told his first lawyers that he was going after a bucket of water when he fell into the cistern; that he testified in a former trial that he probably was in a hurry and persons in a hurry do not generally care what they walk on. There was no one present who testified that defendant had told plaintiff to get the bucket of water and defendant denied having directed plaintiff to do so. However, a witness for plaintiff testified that defendant told her he had sent plaintiff after a bucket of water. Whether there was any perjury committed was a matter for the attention of the trial court, under the circumstances in this...
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