Amis v. Standard Oil Co. of Indiana

• Decision Date: 06 June 1921
• Docket Number: No. 21466.,21466.
• Citation: 233 S.W. 195
• Parties: ARABS v. STANDARD OIL CO. OF INDIANA et al.
• Court: Missouri Supreme Court

233 S.W. 195

ARABS v. STANDARD OIL CO. OF INDIANA et al.

No. 21466.

Supreme Court of Missouri, Division No. 1.

June 6, 1921.

Motion for Rehearing Denied July 23, 1921.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Suit by Otie L. Amis against the Standard Oil Company of Indiana and George Hackett. Judgment for plaintiff, motion for new trial and in arrest overruled, and defendants appeal. Affirmed.

John H. Lucas and William C. Lucas, both of Kansas City, for appellants.

T. J. Madden, of Kansas City, for respondent.

BROWN, C.

This is a suit for personal injury suffered by the plaintiff while engaged in work incident to his employment by the defendant corporation as a boiler maker. The defendant Hackett was the superintendent and foreman under whose direction the work was being done.

The petition states that the plaintiff was employed with others, under the direction of Hackett, in building a circular oil tank at Sugar Creek, Mo. It was about SC feet in diameter and 40 feet high, constructed of metal sheets about 6 feet wide, 15 feet long, weighing from 1,000 to 1,500 pounds each, and curved so as to follow the contour of the tank. Wooden platforms were erected both outside and inside the structure to support the workmen while putting these plates in place. They were raised with tackle operated by horse power, and fastened in place by the workmen with bolts and rivets. At the time of the accident they were engaged in putting and fastening in place one of the top row or ring of plates. In raising this it was held by the tackle with two hooks, the points of which were inserted in the rivet holes which had already been punched in its edges. Hackett was present in charge of and directing the work. Plaintiff and one Thompson Were on the inside platform. The petition states what happened as follows:

"After the last sheet on the top ring of said tank had been drawn up in place it was temporarily fastened at one end by means of a bolt or rivet, and as the same was being lifted so as to bring the entire sheet into proper position the hooks on said rope and pulley, which had been inserted into the rivet holes in said sheet, straightened out and gave way, permitting said sheet to swing loose at one end and to crash down upon and against the platform upon which plaintiff was standing and working, thereby breaking, tearing, and knocking said platform loose and throwing the plaintiff to the iron floor of said tank, a distance of about 35 or 40 feet, injuring him as follows, to wit: lie was bruised, cut, and otherwise injured in and on all parts and organs of his body, head, and limbs, but most severely in his back and spine, hips, shoulders, neck, and head."

After a description in detail of these injuries, the petition proceeds to charge negligence as follows:

"Said injuries were due to and occasioned by the negligence of said defendants in that they provided for use in lifting said metal sheet certain metal hooks which were not reasonably safe for said work, instead of using devises or sonic other device that would not give way; in that said metal hooks were old, worn, and weakened and too small and weak for said work and not reasonably safe for the purposes for which defendants used them; in that defendants used draft horse power for raising said sheets in place instead of mechanical power such as steam, electricity, or gasoline. Defendants were further negligent in that they ordered and directed that said means and appliances be used in said work when they knew, or in the exercise of ordinary care could and should have known, that the same were not reasonably safe for their employees engaged in said work at said time. Defendants knew, or by the exercise of ordinary care could have known, of said conditions and defects for such a period of time prior to plaintiff's injuries that they, in the exercise of ordinary care, should have repaired, rectified, or remedied said defects, or substituted other appliances that were reasonably safe, before the date of plaintiff's injuries."

Judgment is asked for $75,000.

The answer of the Standard Oil Company, after admitting its incorporation and denying generally all other allegations of the petition, pleads assumption of the risk "in entering the employment in which be was then engaged," and also pleads contributory negligence as follows:

"And still further answering, this defendant says that, if plaintiff sustained any injury at the time and place mentioned in his said petition, the same was occasioned by his own carelessness and negligence directly contributing thereto, in that he knew, or by the exercise of ordinary care he should have known, the danger, if any, incident to the handling and doing of the work complained of at the time and place mentioned in his said petition, and with such knowledge, or means of knowledge at his hand, if he sustained any injuries the same were on account of his own carelessness and negligence."

Hackett answers by general denial. Issue was taken upon the answer of the Standard Oil Company by replication.

At the trial the evidence tended strongly to show the following facts, the most of which are undisputed: The plaintiff was a boiler maker working at his trade for the defendant Standard Oil Company in the construction of a circular steel oil tank, 60 feet in diameter and 40 feet high, at Sugar Creek, Mo., from steel plates about 15 feet in length, 6 feet wide, and weighing 1,100 or 1,200 pounds each. It was constructed in rings from the floor, which was of steel laid upon concrete. Each ring was put in place before the erection of the next was begun. Its height represented the width of the plates. These were raised to place by tackle running over pulleys at the top of a gin pole, and operated by horses; the driver taking signals for their movements from the foreman on the work. The structure had been completed, with the exception of placing the last plate of the top ring, which was the first work of the gang in the morning. The defendant Hackett was the general foreman of the work, and had not arrived when the men were ready to proceed, and one Snider took charge as foreman. Scaffolds had been built both outside and inside the structure, just below the bottom of the ring upon which the work was to be done. The plate was to be raised from the ground to its position over the outside scaffold and through the opening it was to fill, to be placed in the structure by the plaintiff and one Thompson from their position on the inside scaffold. It went directly from the tackle which raised it to the opening which it was intended to fill, and the duty of plaintiff and Thompson was to fasten it in place for riveting, with the help of Snider and others on the outside. For the purpose of raising it two hooks were attached to the tackle. These were made of steel or iron rods three-eighths of an inch thick and 8 inches long, attached to a ring on the tackle, and each terminating in a hook which was to be inserted in one of the rivet holes in the top of the plate. These hooks were worn in the bed where the lead would rest. They had been used on the work the day before and had straightened out twice under the weight of the sheet and were pounded back into form with a hammer while cold. They were inserted in the plate as usual, and it moved up toward its place in the tank, but while rising swung against the scaffolding and one of the hooks straightened and came out of the hole, but the other, although distorted, clung to its load, which was promptly lowered. Snider got down from his position on the outside scaffold, took the hooks, and started for the toolhouse, when Hackett arrived and asked him why the sheet had been lowered. Snider answered: "Those damned hooks have straightened out again. They straightened out twice yesterday." Mr. Hackett took the hook and bent it back, and the sheet was hooked and started up again. It was to be placed in position and riveted on the inside of the tank, beneath the top sheet south of it and over the top sheet north of it. The men in handling them used spud bars, which were pieces of metal of from 18 inches to 45 inches in length and larger than the rivet holes punched in the plates. They were sharpened at one end to a point, the taper making them small enough to pass through a rivet hole 4 or 5 inches. When in this second attempt the sheet reached its proper position, the point of Mr. Thompson's spud bar was thrust through a rivet hole in the corner and into a corresponding rivet hole in the sheet already in place, and that corner was worked under the top sheet south of it, and it was held in that position, which was the position in which it was to be riveted into the work. When this was done it was ascertained that the north end had sagged several inches below its proper place, and its curvature at that end, where it was to be riveted over the edge of the next top plate to the north, was so great that it could not be caught with the spud bar, and Snider took his position for that purpose on the outside scaffold at about the middle of the plate. It was drawn by the tackle a foot or so higher, when the hooks again straightened, and, the south end being held fast hi place by the bolt which had been inserted in the south lower corner, the north end fell with such force as to shear the inside scaffold from the wall of the tank, and it fell 30 feet or more to the floor of the tank, taking plaintiff and Thompson with it. The plaintiff survived his injuries, which are shown by the evidence to have been very serious. Mr. Hackett testifies that, when the sheet was lowered on account of the failure of one of the hooks before the accident, he put the end of it in a rivet hole and bent it to an angle a about 90 degrees. After the accident the hooks were pulled down off the gin pole, and he does not know that there was any examination made except by himself. Some one climbed the pole to get them. They...