Padgett v. Scullin-Gallager Iron & Steel Co.

• Decision Date: 07 November 1911
• Citation: 140 S.W. 943,160 Mo. App. 544
• Court: Missouri Court of Appeals
• Parties: PADGETT v. SCULLIN-GALLAGER IRON & STEEL CO.

140 S.W. 943

160 Mo. A. 544

PADGETT v. SCULLIN-GALLAGER IRON & STEEL CO.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

1. MASTER AND SERVANT (§ 177) — NEGLIGENCE OF FELLOW SERVANT—LIABILITY.

An employer is not liable for injury to an employé caused by negligence of a fellow servant.

2. MASTER AND SERVANT (§ 197) — FELLOW SERVANTS—WHO ARE.

An operator of an electric crane in a foundry and an electrician engaged in wiping grease from a trolley wire were fellow servants as affecting the employer's liability for injury to the operator, resulting from the electrician's negligence in causing a fire in the crane cage.

3. TRIAL (§ 156)—DEMURRER TO EVIDENCE— CONSTRUCTION.

On demurrer to plaintiff's evidence, he must be given the benefit of all the inferences deducible therefrom, but conclusions stated by a witness are without weight.

Appeal from St. Louis Circuit Court; Jas. Withrow, Judge.

Action by George W. Padgett against the Scullin-Gallager Iron & Steel Company. Judgment for plaintiff, and defendant appeals. Reversed.

Watts, Williams & Dines and Wm. R. Gentry, for appellant. A. R. Taylor and Morgan Le Masters, for respondent.

REYNOLDS, P. J.

Respondent, plaintiff below, was employed by defendant as an operator on a crane used in the works of defendant and which was moved about on tracks by means of electricity, running from one end of the foundry of defendant to the other. On one end of the crane there is a cage about four feet wide by six feet long, in which the operator stands. It is about 30 feet above the ground and is reached by means of a stationary ladder. There were several controllers and a switchboard in the cage, the controllers being used to operate the crane. The current is carried along trolley wires and connection made through a trolley bar which has a wheel on one end, the wheel being in contact with and rolling along the trolley wire. On the afternoon of the day of the accident, the trolley wire had been broken and been repaired by the day electrician, "and when it was joined together the greasy side was turned so the wire would not receive the electricity," to quote the language of plaintiff. It was therefore necessary to clean off this grease. Plaintiff was on the night shift, working from 6 p. m. to 6 a. m. On the evening, that is, after six o'clock, of the day of the accident, plaintiff and one Cunningham, who was operator of another crane, also moved by the same trolley wires, were in the cage of the crane operated by plaintiff, intending to run it along the track. Neither crane could be moved until the grease was cleaned off of the trolley wire, and Cunningham had gone into the cage occupied by plaintiff, apparently to see about cleaning the trolley wire. One Dowd was an electrician who was on duty at night about the works. On the evening in question and about half past six, Dowd came to the cage where plaintiff and Cunningham were, to wipe the grease off of the trolley wire. Plaintiff had looked over the machinery of the crane and had oiled it and was about ready to start it when Dowd came along and called to him to hold on. When Dowd came to the crane where the men were, he was carrying in his hand a lot of cotton waste and an open can containing gasoline. He told the men that he would clean the trolley wire off would take the grease off of the trolley wire. Whereupon he (Dowd) started to climb up the ladder and into the cage. Dowd told plaintiff that he was there with gasoline to clean the wire off. Whereupon plaintiff said to him, "You had better not bring it up here. Don't bring it up." Dowd, however, came up the ladder with the gasoline and, according to plaintiff, saturated the cotton waste with the gasoline. After he had done that he told plaintiff to "swing down the shop," which meant to turn on the current of electricity and put the crane in motion or "swing" it, so that he (Dowd) could wipe the trolley as they moved along. The open can containing the gasoline, which it appears was a tomato can, was sitting on a rack in the cage or on one of the controllers. Plaintiff testified that the reason he told Dowd not to bring the gasoline up into the cage was because he knew it was explosive and a dangerous substance and that when fire was brought near the vapor of gasoline an explosion was likely to occur, and he further testified that Cunningham said to Dowd that it was dangerous to bring the gasoline up into the cage and not to do it; that there was liable to be a spark from the trolley wire.

According to Cunningham, the only other eyewitness to the transaction, and who testified in the case on behalf of plaintiff, Dowd came up to the foot of the ladder with the can of gasoline and some cotton waste in his hand. He came up the ladder into the cage, saturated the waste with the gasoline and put the can down. Whereupon witness told him it was dangerous; that he never used any of it. Dowd paid no attention to him but went to the corner of the cage to clean the trolley wire and told plaintiff to move—to move the crane, that is to turn on the current. On cross-examination, however, this witness said that he had saturated the waste himself when Dowd came up into the cage; that Dowd had brought the can with the gasoline in it up to him and handed it to witness, who set it on the controller. Plaintiff only turned on one point, as he called it, to start the crane in motion and Dowd proceeded to wipe off the trolley wire. As soon as the current was turned on there was a spark emitted from the trolley wire against which Dowd was holding the waste saturated with gasoline and the waste caught fire. Dowd forthwith dropped it to the floor of the cage. The fire from the waste was communicated to the clothing of Dowd, who had on heavy gloves and so protected his hands, but his clothing on the front of his body being on fire, plaintiff jerked Dowd's "jumper" off from behind to put the fire out. Dowd dropped the burning waste to the floor of the cage. In the confusion that resulted from trying to put out the fire on Dowd's clothes, the can of gasoline was overturned, its contents spilling on plaintiff and on the floor and the whole mass was set on fire, and plaintiff's clothing catching fire, he was very severely burned. So much for the accident.

Touching the relation of the parties to each other, the testimony was to the effect that all the men at work for defendant in these shops, were under a common head, a Mr. Pearson, who was assistant superintendent of the works. He had hired plaintiff some three years before. There were two or more electricians who appear to have been under the immediate charge of a Mr. Ed Jannell, who was the chief electrician, and who also appears to have been under Mr. Pearson, but does not appear to have been on night duty. Dowd and apparently another man were the electricians who had to attend to anything that had to be done at night in connection with repairs of the electric appliances connected with the machinery as well as the lights. Any new work, such as installation, connected with the electrical appliances that had to be done, was never done at night but done during the day. On this particular evening, Dowd was on duty. It was customary for Dowd, or whoever the electrician on night work was, to be called on to attend to whatever had to be done connected with repairs to the electrical mechanism or operations, or, of his own motion, Dowd would attend to it himself. The crane men or other employés would assist him in this work when called on by him. Plaintiff and Cunningham both testified that if there was anything that Dowd needed in the way of assistance in doing his work in connection with their cranes, that instead of sending for any one else to do it they were in the habit of helping him, although they themselves did not touch the wire, that being left to Dowd, and while Dowd was working about the electrical appliances or the electricity, whatever orders he gave connected with it, or whatever orders were necessary to be given in the way of assisting him in it, were given by him (Dowd) to them and carried out by them. They, however, were neither employed nor liable to be discharged by Dowd, being responsible to Mr. Pearson, the common head. Plaintiff said as to this, that if he had declined or refused to obey any orders that Dowd gave him in connection with the electrical work that he supposed Dowd would report him to the superintendent, Pearson, but that Dowd himself had not employed him, had nothing to do with his employment, and had no power to discharge him.

This is practically the evidence in the case with reference to the accident and the relations between Dowd and plaintiff.

The remainder of the testimony in the case was from the physician and from plaintiff himself as to the extent of his injuries. That plaintiff was very seriously burned and possibly is crippled for life, is beyond question, although at the time of the trial he was still retained in the employ of defendant at the wages he had formerly been receiving.

On this state of facts plaintiff instituted this suit in the circuit court of the city of St. Louis. The charging part of the petition avers that defendant's agent in charge of...