Bokamp v. Chicago & A. Ry. Co.

• Decision Date: 05 March 1907
• Citation: 123 Mo. App. 270,100 S.W. 689
• Parties: BOKAMP v. CHICAGO & A. RY. CO.
• Court: Missouri Court of Appeals

100 S.W. 689

123 Mo. App. 270

BOKAMP v. CHICAGO & A. RY. CO.

St. Louis Court of Appeals. Missouri.

March 5, 1907.

1. MASTER AND SERVANT—INJURY TO EMPLOYÉ —NEGLIGENCE OF "WORKING FOREMAN."

In so far as a "working foreman" is performing the work of a laborer, he is, under the laws of Illinois, the fellow servant of another laborer, so the master is not liable for his negligence in such respect causing injury to the other laborer.

2. SAME—PROXIMATE CAUSE.

The foreman of the work of repairing a bridge requiring the raising of girders 18 to 20 feet long, 20 to 22 inches wide, 20 inches deep, weighing from 1,300 to 2,000 pounds, and extending from pier to pier, had the work done without substituting temporary braces for the girders after having their permanent braces removed. By the foreman's orders, an attempt was made to raise a girder by four men, of whom he was one, putting clinch bars under the girder, and each bearing down on his bar with one hand, holding to the girder with the other hand to prevent it from turning. The immediate cause of the girder turning, injuring one of the other men, was the slipping of the bar of the foreman. Held, that it could not be said, as matter of law, that the proximate cause of the injury was the negligence of the foreman in letting his bar slip, which was the negligence of a fellow servant, rather than his negligence, of which there was evidence, in furnishing an unsafe place to work, and choosing an unsafe way to do the work, for either of which, the master would be liable.

3. SAME — FAILURE OF MASTER TO FURNISH SUFFICIENT MEN.

There being evidence that the turning of a heavy girder, in the raising of an end of it, could have been prevented, saving an employé from injury, by the placing of two men at the other end, and all the men present, save one who stood ready to change the blocks under the girder when it was raised, having been engaged in raising the girder, it was a question for the jury whether the master was not negligent in failing to furnish enough men.

4. SAME—ASSUMPTION OF RISK.

An employé, engaged with three others in raising with clinch bars the end of a heavy girder, cannot be said, as matter of law, to have assumed the risk of the bar turning over, by reason of the absence of other men or temporary braces to steady it, he having been obeying the orders of the foreman, and the danger not being obvious and glaring, and not having been anticipated by any of the workmen.

5. SAME—CONTRIBUTORY NEGLIGENCE.

A servant suddenly called on by the foreman to get a bar and assist in raising the end of a heavy girder, in the doing of which he is injured by the turning of the girder, is not guilty of contributory negligence, as matter of law, in doing as directed, though knowing the girder is not braced, he having a right to rely on the superior knowledge of the foreman.

6. SAME — NEGLIGENCE — EVIDENCE — SUBSEQUENT ACTS.

Evidence that after the injury to an employé, by the turning of a heavy unbraced girder while a crew of five men were attempting to raise it with clinch bars, it was raised with safety with a rope and jack, three only of the crew being present, the tendency of which is to show an implied admission that the method adopted at the time of the accident was dangerous, and also to show that a safer method could have been adopted, is inadmissible.

Appeal from Louisiana Court of Common Pleas; David H. Eby, Judge.

Action by Henry Bokamp against the Chicago & Alton Railway Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

On April 15, 1905, plaintiff, a bridge carpenter, in the employ of defendant, was at work on defendant's railroad bridge two miles south of Pontiac, in the state of Illinois. Plaintiff was on the pier of the bridge, assisting another workman to raise the end of an iron girder with claw bars. Two other employés were engaged in the same manner in raising the end of the parallel girder. The bar in the hands of the inside man slipped from the girder, and it turned over and caught plaintiff's left leg and broke it between the knee and the ankle. The action is to recover damages caused by the injury.

The substantive part of the petition, alleging negligence of defendant, is as follows: "That in the performance of its duty to keep and maintain its track in a safe condition, and, in order to maintain the track on said bridge on a level with that on each side of the same, it became necessary to elevate the end of each of said iron stringers or girders which rested on one of the center piers of said bridge, and to place a timber beneath the same; that after the defendant, by its servant's and employés, other than plaintiff, acting under the orders and direction of its said foreman then and there in charge of said work, had negligently, carelessly, and recklessly removed all of the ties from said iron girders, which would in any way hold, brace, or stay the same and after the removal of said ties, had negligently, carelessly, and recklessly failed to brace or stay the same in any other manner, and while plaintiff was engaged under the orders and direction of said foreman in attempting to elevate the end of one of said iron stringers or girders, and while in a position necessary for him to assume that he might execute the orders and directions of said foreman, and while in the exercise of ordinary care for his own safety, defendant, while attempting to elevate the end of said other iron stringer, as a result of its negligence, carelessness, and recklessness in removing from said iron stringers or girders all of the ties which in any way would hold, brace, or stay the same, and of its negligence, carelessness, and recklessness in failing to brace or stay the same in some other manner, after the removal of the ties, caused said iron stringer or girder to turn or fall over and upon this plaintiff, crushing, lacerating, wounding, bruising, and breaking his left leg between the knee and the ankle; that said negligence, carelessness, and recklessness of defendant consisted in its removal from said iron stringer or girder of all the ties which in any way would hold, brace, or stay the same, and in failing, when said ties had been so removed, to brace or stay the same in some other way, and in attempting to elevate the end of said iron stringer or girder at all, in the manner in which it did; and with the appliances used, without first bracing or staying the same in some manner to prevent them from turning or falling over. Plaintiff further states that defendant was also guilty of negligence, carelessness and recklessness, directly contributing to plaintiff's injury herein complained of, in failing to employ, or provide if employed, a sufficient number of men to elevate said iron stringers or girders in the manner attempted by it; that while the manner in which defendant attempted to elevate said iron stringers, or girders, was unsafe, negligent, careless, and reckless, yet if defendant had provided and furnished a sufficient number and force of men, said iron stringers or girders could have been elevated with greater safety to the person of this plaintiff and others there employed than with the number actually so provided and furnished." The answer was, first, a general denial, and the following affirmative defenses: "Further answering, defendant states that the injuries, if any, referred to in the amended petition, were caused by plaintiff's negligence at the time and in respect to the matters alleged in the petition. Further answering, defendant states that the dangers of plaintiff's alleged employment as a bridge workman and handler of iron beams, being such as were necessarily and usually incident to that work, were voluntarily assumed by him in entering upon and continuing in that employment, and plaintiff's alleged injuries, if any, were within the risk assumed by plaintiff in his said employment and work." The reply was a general denial of the affirmative defenses. Verdict and judgment for plaintiff for $1,600, from which defendant duly appealed.

The bridge on which plaintiff was injured had a double track of five spans each. The spans were from 18 to 20 feet long. The girders were all the same length, and were built upon plate iron and angle irons, riveted on the top and bottom, and were from 20 to 22 inches wide on both top and bottom, about 20 inches deep, and weighed from 1,300 to 2,000 pounds each. The bridge piers on which the ends of the girders rested were about 24 by 2 feet on the top. Wooden blocks were placed under the ends of the girders to bring them to the proper height for the track. At either end of the girders a cross-tie was let down into them to brace and hold them in place. The cross-ties on the bridge had become rotten, and defendant undertook to resurface the bridge by putting in new cross-ties, and at the same time to spread the girders a few inches to meet a slight change in the gauge of the road made after the bridge was built. On account of the many trains passing over the road, the repairing of the bridge was what the witnesses called "a hurry up job," and the repairing was done by taking up and replacing a span at a time. All the spans of one track and one span on the other had been completed, and the men were working on the seventh span when plaintiff was injured. The manner of doing the work was about as follows: The spikes were withdrawn from the cross-ties, then the rails were lifted a few inches by jackscrews and blocked up, and the ties were drawn out. The new cross-ties to go on the bridge were thicker than the ones removed, and for this reason the blocks on which the girders rested on the piers had to be removed and thinner ones put in their place. The blocks on the pier where plaintiff was injured extended across the track and both girders had to be raised at the same time for the purpose of removing them and inserting the new ones. Walter Dent was the foreman and...