Bequette v. Pittsburgh Plate Glass Co.
Decision Date | 07 January 1919 |
Docket Number | No. 15272.,15272. |
Citation | 200 Mo. App. 506,207 S.W. 852 |
Parties | BEQUETTE v. PITTSBURGH PLATE GLASS CO. et al. |
Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; James E. Withrow, Judge.
Action by Richard Bequette against the Pittsburgh Plate Glass Company and another. From a judgment for plaintiff, defendant named appeals. Affirmed.
Holland, Rutledge & Lashly, of St. Louis, for appellant.
Safford & Marsalek, of St. Louis, for respondent.
This is an action to recover for personal injuries sustained by plaintiff while in the employ of the defendant Pittsburgh Plate Glass Company, as its servant. The suit was instituted against the Pittsburgh Plate Glass Company and the Universal Sand Company, both corporations; and the trial below resulted in a verdict and judgment against both defendants, from which the Pittsburgh. Plate Glass Company alone has appealed.
At the time of plaintiff's injury, to wit, November 28, 1913, the appellant owned and operated a glass plant at Crystal City, Mo., together with railroad tracks running therefrom for a distance of perhaps a mile or more to a point on the bank of the Mississippi river, at which place there were certain switches and side tracks. Long prior to plaintiff's injury the appellant leased the tracks and premises at and near the river bank to the Universal Sand Company. It appears that the latter company, through one Straight, was erecting a certain "plant" on the bank of the river at this point. It owned and operated a sand-pumping apparatus or station at the river bank, but, it seems, was operating it during the erection of the plant mentioned only for the purpose of pumping and delivering a few carloads of sand per week to appellant, Pittsburgh Plate Glass Company.
From a point 200 or 300 yards from the river, where was located a stationary engine and a drum, a track ran down a slight incline toward the river. It appears that a short distance below this engine there were certain switches or connections, and from this place two tracks branched off, one on either side of what is termed the main or center track. One of these side tracks, as we may term them, was used for storing empty cars, while the other, referred to as the "incline track" or the "sand track," ran down to the sand-pumping station at the river bank where the cars were loaded. The cars were operated on these tracks by means of a cable attached thereto, and which was wound upon the drum connected with the stationary engine at the top of the incline. When it was desired to load a car with sand, one of the "empties" was drawn from the side track upon which it stood, toward the engine, by means of the cable, until it passed a switch, when it was allowed to run by gravity down the other side track which extended to the pumping station at the river. And it appears that when the car was fully loaded it was drawn up by means of the cable and switched on the main or center track, where the loaded cars were stored until taken away from the premises. The evidence is that in thus loading a car with sand it was the custom to first load the upper or forward end of the car, which operation took a few minutes only, and then the car was pulled forward, by means of the cable, about a half a car length in order that sand might be pumped into the lower end of the car, and that when entirely filled the car was drawn up the track and switched onto the" center or main track, as stated above.
It appears that prior to plaintiff's injury there had been some dispute or contention between these two companies as to whose duty it was to repair the tracks upon these premises leased and occupied by the Universal Sand Company, but that it was ultimately agreed that the appellant would make such repairs. On the day of plaintiff's injury plaintiff and three fellow laborers in appellant's employ, under the immediate supervision of one John Keevin, appellant's foreman, were engaged in repairing the main or center track between the stationary engine mentioned and the pumping station at the river bank. As stated, the engine and drum were 200 or 300 yards from the pumping station; and between these two points the "sand track," or the side track extending to the pumping station, curved somewhat. Keevin and this crew of men were repairing the center track at a point, it is said, about 100 yards from the stationary engine, and at this or a somewhat greater distance from the pumping station. Plaintiff, at the express direction of Keevin, who was standing 4 or 5 feet from him, was engaged in "nipping a tie"; i. e., was raising one end of a tie with a crowbar, using a block or other support as a fulcrum, while a spike was being driven into the tie by another member of the crew. In doing this work, in obedience to the direction of the foreman, plaintiff stood, it is said, at the side of this main track near the end of the tie, with his left foot to the rear and placed beyond the nearer rail of the side track which ran to the pumping station, and which joined the main track a short distance above this point. A few minutes before plaintiff was assigned to this specific work a car had been sent down to the pumping station over this side track to be filled with sand; and the cable lay loose upon the ground a short distance, perhaps 4 or 5 feet, behind plaintiff. While plaintiff was thus engaged, intent upon his work, and watching the driving of the spike mentioned, the stationary engine was suddenly started in motion by the engineer, one Myers, an employé of the Universal Sand Company, causing the cable, as it was drawn taut, to swing over toward plaintiff and strike his leg, crushing it against the rail of the side track, causing a serious injury.
Keevin, who had been In appellant's employ for a long time, and whose duty it was to supervise the making of repairs on these tracks, was entirely familiar with the method of handling and loading these sand cars upon the premises mentioned. He knew that when a car was sent down to the pumping station it required but a short time to fill the lower end of it, and that In the ordinary course of events the car would then be moved forward a short distance in order to fill the other end thereof; and he knew that when the stationary engine was started for this purpose the cable would swing violently to one side. Plaintiff, who had worked for appellant many years in one capacity or another, had worked for several months as a member of a crew repairing tracks, during about half of which time he was under Keevin. He had also worked at making repairs on the tracks on these premises, and was familiar with the operation of the cars and the swinging of the cable.
It appears that when a car had been loaded or partly loaded with sand at the pumping station, and was ready to be moved, it was customary for the employé of the Universal Sand Company in charge of the loading operation to stand upon the car, or upon "a flat car ahead of the sand car," and signal to the engineer in charge of the stationary engine by waiving his hands over his head, giving what is termed a "high ball," and that it was the custom of the engineer, before starting the engine, to call out a warning to any one upon or about the tracks who might be endangered by the swinging of the cable. On the day of plaintiff's injury one Stackley, an employé of the Universal Sand Company, was in charge of the sand-pumping apparatus at the river bank, and it was his duty to give the signal mentioned when the car had been partly filled and was ready to be drawn forward a short distance in order to fill the other end thereof.
It appears that this was the first car that had been filled on the day of plaintiff's injury. Keevin, and all the members of the crew, including plaintiff, testified that they heard no warning shouted by the engineer, or any one else, before the engine was put in operation causing the cable to swing and strike plaintiff; and there is other testimony of...
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