Gale v. Helmbacher Forge & Rolling Mill Company

• Citation: 140 S.W. 77,159 Mo.App. 639
• Parties: CHARLES GALE, Respondent, v. HELMBACHER FORGE & ROLLING MILL COMPANY
• Decision Date: 30 September 1911
• Court: Court of Appeal of Missouri (US)

140 S.W. 77

159 Mo.App. 639

CHARLES GALE, Respondent, v. HELMBACHER FORGE & ROLLING MILL COMPANY

Court of Appeals of Missouri, St. Louis

September 30, 1911

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

REVERSED AND REMANDED.

STATEMENT.--This is an action to recover damages for personal injuries sustained while the plaintiff was in the service of the defendant.

The plaintiff had judgment for $ 7500 and the defendant has appealed, assigning as error the action of the trial court in refusing to sustain a demurrer to the evidence, and in giving certain instructions at the instance of the plaintiff.

The salient allegations of the petition are: That defendant was at the time alleged, a corporation, using and operating a certain building and machinery and appliances for making bar iron, and plaintiff was in its service as a machinist laborer. That on August 15, 1906, defendant was engaged in the work of raising a heavy, iron, circular piece of machinery known as a "spider," to adjust it into an appliance known as a "squeezer," using a chain block for that purpose. That in order to raise said spider with ordinary safety to defendant's employees engaged in said work, it was necessary that the chains used in hoisting and securely holding said spider, should be attached to said spider at four places on its circumference, so as to prevent it from getting out of balance and so injuring defendant's employees and the plaintiff. That in raising said spider at said time, Joseph Erschen, defendant's agent and foreman having charge and control of said work of raising said spider for defendant, and also having authority from defendant to provide the manner of doing said work and the means and appliances for doing said work and of directing and controlling defendant's employees in doing said work including the plaintiff, used a chain attached at but two places on said spider. That said chain was iron or steel, and was very liable to slip and cause said spider to slip whilst being so raised and to become unbalanced and injure defendant's employees including the plaintiff whilst so engaged in said work, as defendant and said agent and foreman well knew, or, in the exercise of ordinary care, would have known in time by the exercise of ordinary care to have averted injury to the plaintiff as herein stated. Yet defendant and its said agent and foreman negligently provided said means and caused said spider to be raised as aforesaid. That whilst the plaintiff, in the due discharge of his duty was engaged in aiding in the raising of said spider holding the rim thereof, owing to said defective and dangerous way in which said chain was attached to said spider in two places instead of four, and owing to the failure of the defendant to otherwise secure said spider from becoming unbalanced whilst being so raised, said spider, owing to the chain slipping, became unbalanced and slipped and caught the plaintiff's left arm between said spider and an iron post and so crushed the bones, muscles and tendons thereof as to necessitate the amputation of his left arm between the elbow and wrist. And plaintiff avers that his said injuries were caused by the negligence of defendant and its said foreman in providing such defective means and manner of doing said work. Allegations of suffering and damage follow, and the petition closes with a prayer for damages in the sum of $ 15,000.

The defendant's answer consisted of a general denial, a general plea of contributory negligence and a plea of assumption of risk by the plaintiff.

The reply was a general denial.

The evidence offered by the plaintiff was all the evidence in the case. Defendant offered none. It appeared therefrom that on August 15, 1906, defendant conducted a rolling mill in the city of St. Louis and employed Ed. Drews as master mechanic, Joseph A. Erschen as millwright and plaintiff as a machinistlaborer. Drews, as master mechanic, had authority to hire and discharge all employees, including machinists and millwrights, and to direct and control them in their work. Erschen's duties as millwright required him to take charge of all repair work requiring the taking apart and putting together of heavy machines. Plaintiff ran a machine in the machine shop, working directly under the master mechanic, but from time to time was sent by the latter to work under Erschen. On August 15, 1906, the master mechanic told plaintiff to "work under" Erschen, repairing the squeezer, a heavy machine used in compressing molten iron preparatory to rolling it into bars. Part of the squeezer is a huge, iron, wheel-like contrivance, called a "spider," which weighs several thousand pounds, has a hub, spokes and a rim, and is eight feet in diameter. It fits down on the squeezer, between heavy posts like a wheel lying on its side. Pursuant to the order of the master mechanic, plaintiff went to the squeezer. Plaintiff had worked with Erschen several times in fixing this same machine and testified that Erschen was always in charge of the work when the master mechanic was not there and gave the orders and directions for the work. On this occasion, to make the necessary repair, the squeezer had to be taken apart and then put together. Erschen with the plaintiff and two laborers, foreigners, proceeded to do this, Erschen being in charge and providing and directing the manner of doing the work. Erschen did some of the work himself but the most of it was done by the plaintiff and the two foreigners under his orders. Once in a while the master mechanic would come around and give orders to Erschen about the work. He had been there and left just before plaintiff was injured. In doing the work the spider had been taken off and set upon some blocks beside the squeezer. It was while it was being replaced that plaintiff was hurt. Always before, four chains had been attached to the chain block and fall which was used in lifting the spider on. They were attached to a big ring in the block and fall, and their four hanging ends fastened around the rim of the spider at equi distant points, distributing the lifting force to four different points on the rim. With the four chains thus used, it was impossible for the spider to tip or turn over while being lifted on. Plaintiff testified: "Joe Erschen was supposed to take care of that chain (the four chain apparatus) all the time. It was in his charge." Another witness testified: "If any one wanted anything like that the millwright is the man that gets it." On this occasion, however, Erschen selected and used a two chain apparatus instead of the four chain, and fastened them on the rim of the spider at opposite points. The evidence shows that the spider could not be raised with any degree of safety by using the two chain apparatus. Erschen was present when the two chains were attached. Plaintiff was not; he was over getting a drink of water a hundred and fifty feet away, at the time. When he returned to the spider, the foreigners, doing the pulling, had raised it a little. Erschen was standing on it. Plaintiff, being ordered to do so by Erschen, reached up against the spider to steady it. He asked Erschen "where the 'four-ply chain' was and he said he didn't know. He said we could do it with this all right." Thus the spider was raised some eight feet high and had been moved over and was being lowered between the posts, when suddenly it careened and slipping in its chain fastening, slid obliquely downward and pinioned plaintiff's arm against one of the posts, causing the injury complained of. Other facts will be stated in the opinion proper.

The first and main instruction given upon the part of the plaintiff was as follows, the defendant duly excepting thereto:

"If the jury find from the evidence in this case that on the 15th day of August, 1906, the defendant was using and operating the building, machinery and appliances mentioned in the evidence as a manufacturing establishment for making bar iron;

"And if the jury find from the evidence that on said day the plaintiff was in the service of the defendant as a machinist laborer engaged in the work of aiding in the raising of the spider mentioned in the evidence;

"And if the jury find from the evidence that one Joseph Erschen was at said time in charge of doing the work of raising and adjusting the said spider upon the squeezer (mentioned in the evidence) for the defendant, and authorized by the defendant to provide the means of doing said work and direct and control the manner of doing said work and to command and control the defendant's employees including the plaintiff in doing said work;

"And if the jury find from the evidence in this case that for the work of so raising and adjusting said spider in the manner in which it was being raised to be adjusted, it was necessary for the reasonable safety of defendant's employees including the plaintiff, that said spider, whilst being so raised to be adjusted to the squeezer, that a chain should be attached at four places on said spider's rim to prevent it from getting out of balance and injuring defendant's employees, including the plaintiff, whilst so at work;

"And if the jury find from the evidence that said Erschen acting as foreman of defendant, if you find he was acting as such foreman, provided for said work, two chains attached to said spider at but two places on said spider and the rim thereof, and directed said spider to be raised with said chains so attached;

"And if the jury find from the evidence that whilst said spider was being raised by direction and control of defendant's said foreman, if you find he was such foreman, said chains so adjusted on said spider, slipped and said spider became thereby unbalanced and crushed plaintiff's left arm between said...