Boehm v. General Electric Co.

• Decision Date: 31 December 1913
• Citation: 179 Mo. App. 663,162 S.W. 723
• Parties: BOEHM v. GENERAL ELECTRIC CO.
• Court: Missouri Court of Appeals

162 S.W. 723

179 Mo. App. 663

BOEHM v. GENERAL ELECTRIC CO.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

Rehearing Denied January 20, 1914.

1. NEGLIGENCE (§ 135)—ACTIONS—SUFFICIENCY OF EVIDENCE—KNOWLEDGE OF DANGER.

Evidence in an action for injuries by an armature, which was being hoisted in a building, falling over against a scaffold on which plaintiff was and precipitating plaintiff into a pit, held not to show that plaintiff should have known that it was unsafe to pass over the scaffold near where the armature was being moved.

2. MASTER AND SERVANT (§ 238)—CONTRIBUTORY NEGLIGENCE—SAFE WAY OF WORK.

An employé who chooses an unsafe method of doing his work when there is a safe way at hand may recover for resulting injuries, unless the way chosen is so dangerous that an ordinarily prudent person would not adopt it.

3. NEGLIGENCE (§ 67)—PRESUMPTIONS.

One who was working in a building in which defendant, a contractor, was moving a large electric armature, could presume that defendant would exercise that degree of care required by persons in handling heavy machinery near where others were working.

4. NEGLIGENCE (§ 134)—ACTIONS FOR INJURIES —SUFFICIENCY OF EVIDENCE.

In an action for personal injuries by an armature, which defendant was moving in a building in which plaintiff was working, falling over and striking a scaffold on which plaintiff was standing when the eyebolt in the armature, to which a cable was attached, broke, causing him to fall, evidence held to sustain a finding that defendant was negligent in attaching the cable to the eyebolt without testing it to determine whether it would bear the strain.

5. JUDGMENT (§ 239)—JOINT TORT-FEASORS —LIABILITY.

A recovery may be had against only one, or against all, joint tort-feasors.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by John Boehm against the General Electric Company and another. From a judgment for plaintiff, defendant named appeals. Affirmed.

Dawson & Garvin, of St. Louis, for appellant. Granville Hogan and Earl M. Pirkey, both of St. Louis, for respondent.

REYNOLDS, P. J.

This is an action by plaintiff, respondent here, against the Union Electric Light & Power Company and the General Electric Company, to recover damages for personal injuries alleged to have resulted from the joint tort of the defendants. The petition charges that on a day named plaintiff, then in the service of the Union Electric Light & Power Company, and while discharging the duties of his employment, was at work in a building belonging to the Union Electric Light & Power Company, in which building at the time of the accident the General Electric Company was installing certain machinery; that at the time of the accident both defendants were engaged in hauling and moving a heavy piece of machinery, known as an armature or field, from one part of the building to the other, by means of a crane, equipped with cables; that the cables were attached to an eyebolt in the field and that while the defendants were engaged in moving and handling this field they negligently caused and permitted it to incline and lean sidewise while the eyebolt was held as before mentioned, and negligently, etc., caused the crane, thimble, cables, hook and eyebolt to sustain so much of the weight of the field that undue force was exerted upon the eyebolt, and that because of this undue force, and because it was brittle, defective and insufficient to bear the weight of the field, and insufficient and not reasonably safe for the purpose for which the defendants were using it, the eyebolt broke; that by reason of this breaking of the eyebolt, the armature or field fell from its inclined to a horizontal position on the floor upon which it was located and that in falling it struck a scaffold on which plaintiff was then standing, thereby causing him to be thrown into a pit, to his hurt and injury. It is further charged that this eyebolt, at the time it broke and for a long time next prior thereto, was brittle, defective, insufficient and not reasonably safe to sustain the weight, and that the defendants knew, or by the exercise of ordinary care, could have known such was the fact, and of the danger to plaintiff arising from using it in the manner mentioned; that they had used the eyebolt in inclining this field before they caused the field to incline, yet thereafter they negligently caused the field to incline or lean as before stated and negligently used it without protection, or notice of any kind to plaintiff, and negligently failed to warn plaintiff of the danger, or of the defectiveness or insufficiency of the eyebolt, and thereby directly caused plaintiff to be injured as above set out. Judgment is demanded against both defendants in the sum of $20,000.

Defendants answered separately, the Union Electric Company by a general denial, the General Electric Company by a general denial followed by the averment that the scaffold mentioned in the petition was merely a temporary covering laid over a part of the top of the hole or pit in and about which plaintiff had been working; that there was a permanent stairway coming out of the hole or pit on to a permanent gallery or passageway with other permanent passageways or roads provided for the use of persons leaving the pit and passing through and out of the engine room, which the plaintiff might and should have used, but with notice and knowledge of the work that was being done in removing this field or armature and of the manner in which it was being done and of the place where it was being done and its proximity to the temporary covering or scaffold, negligently, voluntarily and unnecessarily left the permanent galleries or passageways and negligently climbed over the rail of the gallery and got upon and attempted to use this scaffold or temporary covering over the hole or pit as a passageway, and negligently proceeded toward where the field or armature was being handled, and that if he had remained where he was, or used the permanent galleries he would have been in no danger of injury, and that whatever injury plaintiff may have sustained was the result of his own negligence and carelessness. A reply was filed to this.

There was a verdict and judgment in favor of the Union Electric Light & Power Company but against the General Electric Company, the latter in the sum of $2,000.00. The plaintiff appealed from the judgment in favor of the Union Electric Company to the Supreme Court but afterwards dismissed that appeal. The General Electric Company, filing its motion for a new trial as well as one in arrest and excepting to all the adverse rulings and action of the court, duly perfected its appeal to this court.

The case has been argued and briefed very thoroughly by the respective counsel but its decision really lies in a very narrow compass.

It appears that plaintiff was in the employ of the Union Electric Light & Power Company in a building in St. Louis owned by that company. The General Electric Company was engaged in that building in lifting and loading upon a car a heavy piece of machinery called a field, or an armature, intending to remove it from the position it had been in. The field or armature was being hoisted by means of a crane and wire cables run through an eyebolt, which was set in the field. In loading it on the car the field was tilting over at an angle, so that the whole weight of this field, several tons, was thrown upon this eyebolt. The eyebolt broke off short at the eye, and the field, falling, struck the scaffold or boards upon which plaintiff was walking or standing at the time and threw him down into a pit. Plaintiff sustained rather serious injuries. It appears that plaintiff was engaged in his usual occupation, a helper to a pipe fitter working about the plant, and in the course of his work was going from one part of the building to the other. He took this route over this platform or scaffold because it was a "short cut." It appears that there were permanent iron platforms and passageways, as stated in the answer of the General Electric Company, which plaintiff could have used, but it is in evidence that the temporary scaffold over this pit and which was covered with heavy planks or boards, had been in place there for about five or...