134 Mo. App. 493 | Mo. Ct. App. | 1908
Defendant owns and operates a large furniture factory at No. 2527 St. Louis avenue, in the city of St. Louis. In the rear of the factory is a large yard on which defendant stacks its lumber and other material. In the month of December, 1906, defendant was engaged in reconstructing the interior of the third and fourth floors of its factory, by taking out the old flooring and shelving and substituting new. Such old material as was unfit for use in the construction work was thrown out of the windows into the yard and carried away and piled, or was carried into the furnace room for fuel. During the week prior to Monday, December 31, 1906, a considerable amount of old lumber had been thrown from the east window on the third floor into the yard, where it remained in a promiscuous pile. On Monday morning, December 31st, plaintiff and his helper, George Fund, were engaged in moving this pile of lumber. Plaintiff was throwing it back from the wall of the building and Fund was carrying it off. John Koetting was the foreman of the third and fourth floors of the factory, and he and Bernard Kramer were at work on the fourth floor. Koetting was tearing down the old shelving and passing the boards to Kramer. He handed Kramer a shelf board six or seven feet in length and about six inches wide, and Kramer asked him what he should do with it. Koetting replied that it was “no good,” and to throw it out of the window. Kramer testified he shoved the board out of the fourth window from the comer, looked out and saw plaintiff opposite the first window from the corner, and twenty-
The action is to recover for the injury thus received, the petition alleging that the accident resulted from the negligent order of defendant’s foreman and vice-principal, given to a co-employee of plaintiff. The answer was a general denial, special pleas of contributory negligence, that the injury was caused by the negligence of a fellow-servant and that plaintiff assumed the risk.
Plaintiff had been in' defendant’s employ for eighteen or twenty years and was a stockholder in the company. He was known as the “yard foreman,” and worked in the yard most of the time and had worked there the week before he was injured, moving the lumber and other material thrown out of the windows of the third floor.
At the close of plaintiff’s evidence and again at the close of all the evidence, defendant offered an instruction, in the nature of a demurrer to the evidence, which the court refused to give. Under the instruction of the court, the jury found the issues for plaintiff and assessed his damages at $1,500. After taking proper steps to preserve its exceptions, defendant appealed.
1. Defendant contends that Koetting was himself a fellow-servant. Frank Leo Farrenkoph testified that he was treasurer and general manager of the defendant
2. Kramer testified he saw plaintiff working in the yard when he threw the first hoard out of the window; he should have anticipated that plaintiff might have moved his position to one where the second hoard might fall on him, and his failure to look until it was too late was negligent. But Kramer was plaintiff’s fellow-servant, and defendant is not liable unless Koet-ting was also negligent in failing to warn or instruct Kramer to look out for plaintiff before throwing the board. Plaintiff had worked in the yard regularly for many years, and it is reasonable to infer that Koetting knew, or should have known, that he was probably in the yard when he ordered Kramer to shove the boards out of the window. On the other hand, plaintiff knew that boards and other material had been thrown from the windows and that more would be thrown out, and should have known that such material would probably be thrown out the morning he was injured. Ruud, plaintiff’s helper, testified that when they went to work in the morning he said: “We better not go at that-piling lumber until this stuff is all thrown down. M'r. Schmelzer says, No, this has to come away, if I don’t do this, nobody else will.’ I never said anything but went to work.” This statement was not denied. It was plaintiff’s duty, in the circumstances, not to place himself in the way of being struck by material thrown from the windows. But laying aside the question of plaintiff’s contributory negligence and coming back to the question of whether negligence can be attributed to