Bentley v. American Car & Foundry Co.
| Decision Date | 05 February 1929 |
| Docket Number | 20498 |
| Citation | 13 S.W.2d 562 |
| Parties | NELSON BENTLEY, (Plaintiff) Respondent, v. AMERICAN CAR & FOUNDRY COMPANY, a Corporation, (Defendant) Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, City of St. Louis. Hon. Frank Landwehr Judge.
Walter E. Bennick, COMMISIONER. Becker and Nipper, JJ., concur.Haid P. J., not sitting. Haid, P.J., not sitting.
OPINIONW.E. Benick, COMMISSIONER.
This is an action for damages for personal injuries, sustained by plaintiff, an employe of defendant, on February 16, 1925 while engaged, together with certain of his fellow employes, in placing chains around bundles of metal parts or appliances, so that the same might be lifted and moved out of an open coal car by means of a crane located on the ground some distance away. During one of such operations, while plaintiff was in the act of fastening his chain, the bundle was prematurely lifted, causing his left leg to be caught between the pieces of iron as they were forced together, and both bones thereof fractured.
Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $ 1,500. Judgment in conformity with such verdict was thereupon entered, from which defendant, after its motion for a new trial was overruled, has duly appealed.
The negligence pleaded and relied upon by plaintiff in the submission of his case to the jury was twofold: First, in ordering the crane to be started in operation while plaintiff was in a position of danger; and, second, in failing to warn him that the bundle was about to be moved.
The answer filed by defendant was in the form of a general denial.
Plaintiff was ordinarily employed as a chainman on crane No. 9, in company with one Cole. In the performance of their duties, each man would fasten a chain around a designated end of the bundle; and it seems that the prevailing practice was for the last man finished with his work to give a signal with his hand for the crane to be started in motion. However, on those occasions when plaintiff was called upon to assist on crane No. 8, as frequently was the case, an employe named Lewis, who was regularly assigned to such crane, invariably gave all signals.
While there was a standing rule in effect that, whenever plaintiff and Cole should complete their own work, they should thereafter go to the aid of the men engaged at crane No, 8, there was evidence that, on this particular day, the, foreman, in conversation with Cole at least, directed that he and plaintiff should work at crane No. 8, and specifically told him that Lewis would give the signals. At any rate, on each of the six operations which had been successfully conducted before plaintiff was injured, Lewis was the one who gave the starting signals to the crane operator, only, however, after having first given timely warning to plaintiff of his intentions.
On the last occasion, while plaintiff was yet stooped over his end of the bundle, he observed the pieces of metal dragging on the floor of the car; but, before he could step backwards to a place of safety, his leg was caught, with the serious consequences heretofore detailed. No warning had been received by him from Lewis in this instance, but as he straightened up in his endeavor to save himself, he observed that Lewis had his hand in the air, but whether to start or stop the crane, plaintiff was unable to say.
Defendant's evidence, in substance, was that plaintiff, as the last man to complete the fastening of his chain, signaled that the crane be put in motion, without having stepped back into the clear, and that, as the chains tightened, a small piece of metal was caused to move against a heavier one, catching plainttiff's leg between the two, and breaking it from the pressure thus applied.
Defendant's first assignment of error is predicated upon the refusal of the court to have instructed the jury peremptorily to return a verdict in its favor. Learned counsel suggest, in support of their position, that there was no substantial evidence that Lewis gave a starting signal to the operator of the crane, and that, in the absence of such proof, the failure of defendant to have warned plaintiff that the material was about to be moved could not be the basis of a recovery, because, under such circumstances, no opportunity for giving a warning could have arisen.
As we view the evidence, there is no need to dwell at length upon this point. It is quite true that the record affords no positive evidence that Lewis gave the very signal which brought about plaintiff's misfortune. However, it is significant to note, not only that the foreman, in ordering plaintiff and Cole to work at crane No. 8, emphatically stated that Lewis would give the signals, but also that Lewis had actually given all signals prior to the moment when plaintiff's injury was received, as he had regularly done on those former...
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