Barber v. Missouri Boiler Works Co.

Decision Date06 June 1927
Docket NumberNo. 16015.,16015.
Citation297 S.W. 124
PartiesBARBER v. MISSOURI BOILER WORKS CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

"Not to be officially published."

Action by Roy Barber against the Missouri Boiler Works Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John D. Wendorff, of Kansas City, for appellant.

Cliff Langsdale, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $700 and defendant has appealed.

The facts show that plaintiff was injured by his hand being caught between sections of a smokestack which he was assisting in erecting in a 14-story building in Kansas City, Mo., which building was in course of construction at the time. The smokestack which was being erected was made of three-eighth inch sheet metal. It was oval in shape, a cross-section being about 3 feet one way and 4 feet the other. It was prepared in sections about 10 feet long and weighing about 1,000 pounds. At the ends of each section there was riveted a flange or angle iron, which extended out in a circle at right angles from the body of the section about 3 inches and flush with the end. These angle irons were about five-sixteenths of an inch thick. There were 32 five-eighth inch bolt holes in each flange. The smokestack was being erected by placing a section upright on top of the lower one already in place so that the bottom flange of the top section rested on the top flange of the other section in such a position that the bolt holes in each flange corresponded. Bolts were then inserted into the bolt holes, passing through the flanges, and nuts were screwed on the ends of the bolts and the sections of the smokestack were thus held in place. The brick work of the outside walls of the building had been completed to the eleventh floor and the floors from the bottom to the eleventh floor had been laid in concrete except a small section about 5 or 6 feet square in the southwest corner of the building where the smokestack was being installed. There was a clearance of 6 inches between the stack and the sides of the opening for the pipe when installed. For the purpose of assisting in the erection of these sections of the smokestack a "crab" or windlass was constructed upon a platform about 15 feet above the roof of the building or about 30 feet above the eleventh floor. Attached to this windlass was a drum with two handles and around the drum was wound a steel cable. By the use of the cable, drum and windlass, the sections of the smokestack were raised or lowered.

The sections were made prior to their delivery at the building and were taken up on the outside of the structure to the eleventh floor by means of a derrick set up on the outside of the building. When the sections were placed on the eleventh floor chains were put around one end of them. The cable had fastened at its lower end a hook which would be attached to these chains and by the winding of the cable around the drum of the windlass, which was operated by two men, the section would be raised, and lowered by reversing the drum. The men at the windlass would raise or lower the section upon a signal given by the workmen installing the section. In lowering a section, it would be let down to within 6 or 8 inches of the top of the section already erected and at this point the section being lowered would be stopped and the workmen would manipulate it by pulling and turning it so that when it was finally lowered, the bolt holes in the flange of the section being lowered would fit over the holes in the flange of the last section that had been set in place. There was a platform made of boards over the opening at the twelfth floor, which was placed there in order to prevent debris created by the bricklayers and terra cotta setters, who were working on the twelfth floor, from falling on the men working below. It was impossible for the operators of the windlass to hear a voice for a distance of more than two stories, and such voice could not be heard below the twelfth floor, so an ordinary window sash cord about one-eighth of an inch in diameter was run from a signal bell attached to the windlass, down through the opening in question and between the planks over the opening at the twelfth floor. The cable attached to the windlass also ran through these planks. When the men placing the section of the smokestack desired it to be lifted or lowered, they would give the proper signal by pulling the bell cord.

About five sections of the smokestack had been erected at the time plaintiff was injured. Shortly before that time plaintiff and his foreman, Frazer, and another workman by the name of Strange, attached the chains to a section of the smokestack on the eleventh floor and hooked the cable on to these chains. Frazer gave a signal, by pulling the bell cord, to the men operating the windlass who dragged the section of the stack to the opening of the shaft on the eleventh floor and began to lower it through the shaft. It was to go to about the fifth floor where it was to rest upon and be bolted to the last section that had been installed. When the section of the smokestack started down the shaft, Frazer, Strange, and plaintiff began to descend the ladders to meet it and guide it to the lower section. Frazer stopped at the eighth or ninth floor and took a position overlooking the shaft. Strange and plaintiff went on down to the place where the section was to be installed. It had been the practice of plaintiff in erecting this smokestack when a section of the pipe came to within 6 or 8 inches of the top of the section already erected, to shout to Frazer so that the latter could pull the bell cord and stop the pipe so as to permit plaintiff and Strange to adjust the section being lowered in order that when it was finally let down the holes in its flange would fit over the holes in the flange in the top of that part of the stack already erected. This particular section of the stack "was coming down through the hole crooked" and had been fouling or catching upon the side of the wall during the entire course of its descent to the fifth floor and when it reached a point 6 or 8 inches from the top of the stack already in place, Strange was prying it away from the wall of the shaft by a 2x4.

Plaintiff, who was situated about 2 feet from Strange, shouted to Frazer to have the section stopped. Frazer pulled the bell cord and plaintiff reached in and put his hand underneath the flange and the section in order to pull and turn it to the proper position and at that instant the section fouled against the wall of the shaft which caused it to stop for a second or two. This caused Frazer to believe that the men at the windlass had received a signal to stop, but after pausing there for a second or two, as aforesaid, the section went on down and caught plaintiff's right hand between the upper flange of the lower section and the lower flange of the section being installed. Plaintiff testified "it stopped there (where it fouled)—I thought it would stop?' Later he testified positively that it did stop. Frazer testified that it stopped a second or two after which "it jumped that way (illustrating), dropped."

The bell cord signaled the operators of the windlass successfully at the eleventh floor when this section of the stack was started down; that was about 10 minutes prior to the time the foreman attempted to use the cord again when the section reached a point 6 or 8 inches from the lower section and plaintiff shouted to him to have it stopped. After plaintiff was injured, Frazer went down to the place where plaintiff was located. The latter left and Frazer procured the help of another man. The section having fouled upon the lower part of the stack, it was necessary to lift it off and Frazer pulled the bell cord, attempting to signal the men at the windlass to raise the section, but there was no response. He then went to where the windlass was situated and upon the twelfth floor discovered that the bell cord had been severed where it went through the platform on that floor, finding that it had been cut in two by two or three hundred pieces of terra cotta which had been thrown on it, which was also holding it. This was 20 or 25 minutes after he pulled the cord in an effort to give a signal after plaintiff was injured. He testified that he Inquired of the operators of the windlass whether they had received the signal immediately prior to the time plaintiff was hurt and they replied in the negative, but this testimony was stricken out on motion of defendant. Frazer testified that he could not tell whether the bell cord was attached to the bell or something else when he pulled it. He testified on cross-examination:

"Q. I understand you don't know what made the stack sag down after it apparently stopped, of your own knowledge? A. I told you it fouled.

"Q. I say you don't know what did it? A. It fouled up, and them fellows didn't get a signal to stop, and it slacked up the line and then jumped down.

"Q. And that would have made it go down regardless of any signal to stop? A. No, sir; if they had got a signal to stop, they would have had the cable on.

"Q. I know if they had gotten it soon enough. A. If the bell had been working they would have got the signal.

"Q. They would have gotten it some time. How far did it go after you gave the signal? A. A couple of inches or an inch.

"Q. You think not more than a couple of inches after you gave the signal? A. Sir?

"Q. You think not more than a couple of inches after you gave the signal? A. No, sir; I just judged that they had gotten the signal by the way it stopped at that time.

"Q. Stopped at the place where they would have stopped if they had gotten the signal? A. Yes; I pulled the cord."

Paintiff's evidence tends to show that he was furnished with a short wrench with which to...

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