Bennett v. Himmelberger-Harrison Lumber Co.

• Decision Date: 27 February 1906
• Citation: 94 S.W. 808,116 Mo.App. 699
• Parties: BENNETT, Respondent, v. HIMMELBERGER-HARRISON LUMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

94 S.W. 808

116 Mo.App. 699

BENNETT, Respondent, v. HIMMELBERGER-HARRISON LUMBER COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 27, 1906

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

REVERSED AND REMANDED.

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 its contents or purport; which said representations were false and fraudulent and by the use of said fraud and false and fraudulent representations, plaintiff signed said paper in ignorance of its true purport and in the belief that it only released defendant from continuing plaintiff on the pay roll during his illness.

The evidence shows that plaintiff had used the spurs on a previous occasion in climbing a tree and rigged it as a mast for the operation of the skidder, and found, as he testified, that the gafts were too short to go through the bark and take hold in the wood and that the stirrup was too broad or open for his foot, and he testified that he told the boss of the skidder crew (Sam Riley) of the defects and that Riley said he would have the stirrups turned in and the gafts made longer. The gafts were attached and held in place by rivets. After plaintiff made complaint of the spurs, they were taken to defendant's blacksmith shop and the blacksmith was given directions to make the necessary alterations as recommended by plaintiff. The blacksmith (Ed Holder) drew in the stirrup so that it fitted plaintiff's instep, detached the gafts and drew them out about one-half an inch, made them sharper at the points and re-riveted them to the climber. Plaintiff testified he did not examine the spurs after the alterations were made and denied that he directed how the alternations should be made or that they should be altered at all; that he only complained that the gafts were too short and the stirrup was too wide. Riley, the boss, and Alexander, the superintendent, testified that after plaintiff climbed the first tree, he said the climbers were not in the right shape; that the gafts were not long enough and would not stick and that the stirrup was too broad; that the gafts ought to be made sharper and longer; that he was told he could have them changed to suit himself and that the changes were made at his request and as he directed; that after the changes were made, and the climbers were returned from the shop, plaintiff examined them and said they were all right. Holder, the blacksmith, testified that he had made the alterations in the climbers as directed and that the spurs were securely riveted on after they had been drawn out and that the weight of a man, even if he weighed three hundred pounds, was not sufficient to break the gaft loose; that it would require a severe blow to break them off. (Plaintiff weighed one hundred and sixty pounds.) To keep his body erect and steady while climbing the tree, plaintiff used a withe which he passed around the tree and held onto with both hands. He testified that after he had climbed about sixty feet up the tree, the gaft of the left spur broke off, causing him to slip down the tree; that he tried to stop himself by grasping the tree with his knees and holding on to the withe with both hands but that his hands gave out and he lost his grip on the withe and his descent was accelerated until he struck the ground; that he fell in between the rails of the railroad track and his evidence tends to show that bones in the instep of his left foot were broken, also some bones in his left heel, and that both hip joints were jammed and badly injured; that he suffered intense pain for eight or nine weeks while confined to his bed and that his left hip and foot continued to give him pain; that since the injury and up to the time of the trial, he was unable to do ordinary manual labor on account of his injuries; that he was twenty-six years of age and before his injury was a strong, robust man, weighing about one hundred and sixty pounds; that he had had experience in climbing with climbing spurs before he was employed by the defendant; that at the time of his injury, he was earning two dollars per day.

Defendant's evidence is that in climbing, plaintiff would use his knees instead of the spurs, and that he was repeatedly warned by Riley, the boss, while climbing the tree from which he fell, not to use his knees, but to keep them away from the tree and use the spurs; that after climbing up the tree about sixty feet, he came to a slight bend in the tree and halted and hugged the tree with his knees; that he seemed to be frightened and commenced to slide down the tree, and after sliding down eight or ten feet, let go of the withe and came on down rapidly; that the gaft of the spur on plaintiff's left foot was found where he fell right at the foot of the tree.

The release pleaded in...