94 S.W. 808 (Mo.App. 1906), Bennett v. Himmelberger-Harrison Lumber Co.

Citation:94 S.W. 808, 116 Mo.App. 699
Opinion Judge:BLAND, P. J. (after stating the facts).
Attorney:Oliver & Oliver for appellant. H. C. O'Bryan and B. F. Kelly for respondent.
Judge Panel:BLAND, P. J. Goode, and Nortoni, JJ., concur.
Case Date:February 27, 1906
Court:Court of Appeals of Missouri

Page 808

94 S.W. 808 (Mo.App. 1906)

116 Mo.App. 699

BENNETT, Respondent,



Court of Appeals of Missouri, St. Louis

February 27, 1906

Appeal from New Madrid Circuit Court.--Hon. Henry C. Riley, Judge.


STATEMENT.--Defendant is a corporation and the owner of a large sawmill and manufacturing plant at Morehouse, New Madrid county, Missouri. It owns a large body of timber land in the same county, from which the mill is supplied with saw stock. The saw timber is brought to the mill by rail. To expedite the work of hauling the sawlogs from the woods to the railroad, called a tramway, defendant purchased and put in use what is known as a skidder machine. This machine consists of a boiler and engine which, when in use, is mounted on a flat car. When it is desired to operate the machine, a convenient and strong tree is selected and the railroad track is laid from the main road to the tree and the car on which is mounted the skidder machine, is backed up against the tree. The tree is equipped with blocks, tackles and pulleys and is supported by guy ropes; in the evidence it is called a "gin pole or mast." Through the pulleys, wire ropes are worked by the skidder for the purpose of pulling logs from the woods to the loading place. To operate the skidder requires a crew of seven men. On May 25, 1903, plaintiff was one of the crew operating the skidder and his duties were to run the skidder engine and climb the tree selected as a mast and attach, while up in it, the necessary blocks, tackles and pulleys for the wire ropes to pass through and to make secure the guy ropes to the tree. Along with the skidder machine, there was furnished a pair of climbing spurs consisting of a piece of flat steel made to fit the inside of the leg below the knee, with a stirrup to extend under the instep of the climber's foot and near the lower end of the spur is a projecting piece of steel projecting downward and inward, called a gaft or spike. The spur climber is fastened to the leg of the climber by straps, his foot resting in the stirrup. In climbing, the climber drives the gaft into the tree or pole he is ascending to a sufficient depth to sustain his weight. His upright position as he climbs is usually maintained by the leather straps and ring about his body. On May 25, 1903, plaintiff, in pursuance to his duty, put on the climbing spurs and proceeded to ascend a large tree which had been selected as a mast. He ascended the tree about sixty feet when the spur on his left foot, according to his evidence, broke, and being unable to save himself, he fell to the ground and alighted between the rails of the railroad track. The fall caused injury to his left foot and to both of his hips. The suit is to recover for these injuries.

The petition charges in substance that the defendant and its master mechanic failed and neglected to furnish the plaintiff with reasonably safe climbing spurs.

The answer denied the defendant failed to furnish the plaintiff with reasonably safe climbing spurs and alleges that the spurs furnished were strong, sound and of the most approved design and such as were in universal use. For affirmative defenses, the answer alleged in substance that the plaintiff's fall from the tree was caused by his own want of care and that his own carelessness contributed to his fall; that the climbing spurs used by plaintiff were furnished at the special instance and request of the plaintiff and were changed to suit him by his special direction, and the gafts made longer at his request, and if they were thereby made weak, they were made so by the direction and order of the plaintiff; that plaintiff represented himself as an expert climber to defendant's foreman and made application for the position of climber for an increase in his wages and knew that the climbing was attended with risk and assumed that risk. And further alleged that the plaintiff, while climbing the tree, became frightened and refused to use the spurs, lost his poise and fell; that on the 11th day of September, 1903, plaintiff and defendant made a settlement between themselves for the injuries complained of and that the plaintiff, in consideration of $ 188 paid him, executed and delivered to the defendant a release of all claims for the damages claimed in the petition and for which the suit was brought.

The replication denied the new matter pleaded in the answer, and in respect to the release, alleged that after the plaintiff was injured, the defendant, without any consideration or agreement, continued to carry him on its pay roll and paid him on July 10th, $ 50, on August 10th, $ 52, and on September 10th, $ 54, which payments he supposed were gratuitous; that on the 11th of September, 1903, one Sol Alexander, superintendent for defendant and vice-principal came to plaintiff and represented to plaintiff that the company wanted him to sign the paper filed, telling him that its contents were a release from high wages while he was not working as they had formerly been paying, that plaintiff would find the paper in the office, which representation was the sole inducement for plaintiff to sign the same, and which representations were relied upon as true by plaintiff, and believing and acting thereon he signed the same without knowledge of...

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