Brice v. Union Electric Co.

550 S.W.2d 629, 1977 Mo. App. LEXIS 2062
CourtMissouri Court of Appeals
DecidedApril 26, 1977
DocketNo. 37897
StatusPublished
Cited by5 cases

This text of 550 S.W.2d 629 (Brice v. Union Electric Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brice v. Union Electric Co., 550 S.W.2d 629, 1977 Mo. App. LEXIS 2062 (Mo. Ct. App. 1977).

Opinion

NORWIN D. HOUSER, Special Judge.

This is a suit for damages brought by Joseph Brice against Union Electric Company, with a count for loss of services and consortium by his wife Mary. Following a jury verdict for $3,780 for Joseph and $1 for Mary the trial court sustained defendant’s post-trial motion for judgment notwithstanding the verdict and entered final judgment for defendant. Plaintiffs appealed.

Under contract General Installation Company agreed with Union Electric to inventory, load and transfer surplus pipe, fittings, valves and miscellaneous supplies from the latter’s Labadie plant in Franklin County to its Rush Island Plant. Brice, an employee of General Installation, while working in the pipe yard of Union Electric at the Laba-die complex, looking for material to load on a truck, sustained injuries as a result of stepping on a to 3 inch nail, which punctured his foot.

The pipe yard was large — a quarter of a mile square. The whole area was covered with miscellaneous materials and objects lying around on the ground. Pallets, piping, flanges, bends, elbows, all types and sizes of pipe fittings, debris, paraphernalia, crates, boards, etc. were scattered around and spread out on the ground. Grass and weeds grew in clumps and material was “laying in this stuff.” The yard was littered, cluttered, with “stuff thrown around . more or less a bunch of junk.” Ordinarily flanges and various kinds of paraphernalia in pipe yards are not stacked up in neat piles. Brice’s job was to examine a list of needed materials, search for the desired items in the yard, load them on a truck and have a Union Electric employee inventory and check the items out as they left the premises.

On the day of the injury, March 15, 1974, Brice knew that it was important to watch where he was walking. There were no clear walkways Brice could have walked on to get to the material for which he was looking. After working in the yard for an hour and a half, threading through the debris, looking for the desired items, he came to a particularly large pipe fitting, a 90° elbow 21 inches in diameter. He could not have walked around this pipe fitting because the yard was “cluttered with material.” There was so much “junk lying around” that he had to step over it, which he chose to do instead of stepping on flanges “and stuff like that.” As he stepped over the pipe fitting and as his, foot came down on the other side a nail went into his foot.

The protruding nail had been driven through a board 2 or 3 feet long, 3 inches wide, and ¾ inch thick. The board was not a new board. It was a piece of crating [631]*631lumber, dark gray to brown in color, sunk or “set” in the mud to a depth of an eighth to a quarter of an inch, surrounded by inch-high grass . . . “stuck in the mud and grass.” There were crates in the yard in 1972, when Brice had previously been there. When Brice raised his foot after stepping on the nail the board came up with his foot, leaving a depression in the ground. There was grass around the board, but no grass where the board had been “setting.” The board “had been there for quite some time.”

Brice was watching where he was walking when he stepped over the pipe fitting . watching where he was stepping. He said “ * * * as you walk along you are looking at the ground, looking for the particular items on the list,” and indicated that another purpose of looking is to avoid stepping on something dangerous that comes within your line of vision. Brice walked to the pipe fitting, looked down, did not see anything, and stepped over. He looked over the 21-inch fitting before he stepped to see where he would be stepping. His “reason for stepping over was looking around, and that looked like the easiest way to go.” He was looking where he was going when he stepped. He did not see the board or the nail. One could not see the board when “stepping about a foot in front of” the pipe fitting. Both the fitting and the grass surrounding the board obscured his vision. He stepped where he could not see. Part of the board was “way under” the pipe fitting, “laying up against the other side of the fitting.” The board was lying so close to the fitting that he did not know whether he could have looked over the fitting and seen the board. By bending over and looking carefully over the fitting he could have seen the entire board, but he “might have had to move the fitting to see it.” He did not bend or look completely over the fitting to see where he was going to step because he saw nothing “that would indicate it would take a closer look by bending over.”

Plaintiffs submitted to the jury negligent failure of Union Electric to remove a condition on the surface of its lot (board with protruding nail) known to defendant, actually or constructively, and not known to plaintiff by exercise of ordinary care, as a result of which the surface was not reasonably safe for employees of General Installation. Defendant submitted the defense of contributory negligence.

The vital, dispositive issues on this appeal are (1) whether Brice made a submissible case of knowledge on the part of Union Electric, actual or constructive, of the dangerous condition of its land; (2) whether Brice had equal or superior knowledge or opportunity to obtain knowledge of the dangerous condition than did Union Electric; (3) whether Brice was exercising ordinary care for his own safety or was guilty of contributory negligence as a matter of law.

In determining these factual issues we consider the evidence in the light most favorable to Brice, and accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence. Bridges v. Arkansas-Missouri Power Co., 410 S.W.2d 106, 108 (Mo.App.1966). There were no witnesses to the casualty other than Brice. Union Electric introduced no evidence other than eight pages from Brice’s deposition.

The following was sufficient evidence to make a submissible case of constructive knowledge of the dangerous condition on the part of Union Electric: The yard was owned and operated by Union Electric and under its control. Uniformed guards were employed by Union Electric to protect the property, admit persons lawfully on the premises to look for and remove items and material from the yard, and to inventory, check out and authorize such removal. The cluttered, littered condition of disarray had existed since 1972, a period of two years. The nail protruded from a piece of crating lumber. Crates had been observed lying in the yard in 1972. The lumber in which the nail was driven was not new lumber; it was weathered in appearance, dark gray to brown in color. It was imbedded in the [632]*632mud, surrounded by growing grass, but there was no grass in the depression from which the piece of wood was lifted. From the foregoing the jury could infer that the lumber, with the 2V2 to 3 inch nail protruding therefrom, had been in the same place for an extended period of time, long enough that Union Electric, through its employees in charge of the yard, could and should have known of the dangerous condition in time to have removed it.

The evidence does not demonstrate as a matter of law that Brice had equal or superior knowledge or opportunity to obtain knowledge of the dangerous condition. Unlike the grease on the floor and feet of the ladder in Hokanson v. Joplin Rendering Co., Inc., 509 S.W.2d 107

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burns v. Schnuck Markets, Inc.
719 S.W.2d 499 (Missouri Court of Appeals, 1986)
Cross v. Lindenwood Colleges
677 S.W.2d 423 (Missouri Court of Appeals, 1984)
Chism v. White Oak Feed Co., Inc.
612 S.W.2d 873 (Missouri Court of Appeals, 1981)
Hedgcorth v. Missouri Pacific Railroad
592 S.W.2d 473 (Missouri Court of Appeals, 1979)
Wright v. Interco, Inc.
567 S.W.2d 149 (Missouri Court of Appeals, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
550 S.W.2d 629, 1977 Mo. App. LEXIS 2062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brice-v-union-electric-co-moctapp-1977.