Bowman v. American Car & Foundry Co.

Decision Date01 March 1910
Citation226 Mo. 53,125 S.W. 1120
CourtMissouri Supreme Court
PartiesBOWMAN v. AMERICAN CAR & FOUNDRY CO. et al.

Appeal from Circuit Court, St. Charles County; Jas. D. Barnett, Judge.

Action by Alfred Bowman against the American Car & Foundry Company and others. From an order granting a motion for new trial after verdict for defendants, they appeal. Reversed and remanded, with directions to overrule motion and enter judgment upon verdict.

Watts, Williams & Dines and Wm. R. Gentry, for appellants. Edwards & Wilson, for respondent.

VALLIANT, J.

Respondent, plaintiff, while working on the premises of the American Car & Foundry Company was injured in his person by the falling on him of a pile of pig iron; he brought this suit praying judgment for $10,000 damages, alleging that his injuries were the result of the joint and concurrent negligence of the three defendants. At the conclusion of the plaintiff's evidence the court, at the request of the defendant Lawler, gave an instruction that, as to him, the plaintiff was not entitled to recover, but refused a similar instruction asked by each of the other two defendants, and their exceptions are duly preserved. At the close of all the evidence the plaintiff dismissed the suit as to defendant Hack Clark. The case was submitted to the jury with an instruction to find for the defendant John Lawler, and instructions pro and con as to the defendant the American Car & Foundry Company. The jury returned a verdict for both the defendants. The plaintiff filed a motion for a new trial, which the court sustained on the ground that it had erred in one of the instructions given for the American Car & Foundry Company; from that order the two defendants have prosecuted this appeal.

The petition alleged that the three defendants the American Car & Foundry Company, a corporation, John Lawler, and Hack Clark were engaged in operating a car and foundry plant and manufacturing railroad cars; that plaintiff was employed by defendants, and that while under their orders and directions was engaged in moving and piling a lot of iron for the defendant corporation at a point adjacent to a large pile of pig iron about 10 feet high and _____ feet long, on the premises of the corporation, which had been placed there by the defendants. The pile fell over on the plaintiff and inflicted very serious injuries, which are specified. The negligence charged is that the place in which the plaintiff was put to work was in an unsafe and dangerous condition; that the pig iron "had been so piled and placed as that it was liable to fall over at any time, and was so liable to fall over at any time as to render it dangerous and unsafe for any one to engage in the work of piling iron immediately adjacent thereto; that defendants knew of the dangerous and unsafe condition of said pile of pig iron, and knew of the dangerous and unsafe condition of the place at which they ordered and directed the plaintiff to work, or by the exercise of ordinary care could have known it," etc. The answer is a general denial and a plea of contributory negligence; there is also what the counsel call a plea of assumption of risk.

The testimony on the part of the plaintiff tended to prove as follows: The American Car & Foundry Company is a corporation engaged in conducting a foundry and railroad car manufacturing business with its plant in St. Charles. On the day of the accident the plaintiff, with two other men, was engaged in piling pig iron in the yards of the corporation along by the side of another pile that had stood there several months, when the old pile fell over, and a number of pieces of the pig iron fell on plaintiff and inflicted very serious injuries. The piles were constructed in the form of piles of cord wood, the pieces of pig iron were about 18 inches in length, some longer and some less, weighing about 50 or 60 pounds. The pile that fell was constructed in the usual way, except that it was higher than usual, the plaintiff estimated the height at from seven to eight feet, he said the usual height was five or six feet; that is, as high as a man on the ground...

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27 cases
  • Kramer v. Grand Natl. Bank
    • United States
    • Missouri Supreme Court
    • April 17, 1935
    ...536; Hartford Mining Co. v. Tabon, 21 S.W. (2d) 207; Casey v. Donovan, 65 Mo. App. 521; Halyard v. Dechelman, 29 Mo. 459; Bowman v. Am. Car & Foundry Co., 226 Mo. 53; Rochette v. Terminal Ry. Assn., 225 S.W. 1019; Stanard Milling Co. v. Transit Co., 122 Mo. 258. (4) Plaintiff having failed ......
  • Kramer v. Grand Nat. Bank of St. Louis
    • United States
    • Missouri Supreme Court
    • April 17, 1935
    ...536; Hartford Mining Co. v. Tabon, 21 S.W.2d 207; Casey v. Donovan, 65 Mo.App. 521; Halyard v. Dechelman, 29 Mo. 459; Bowman v. Am. Car & Foundry Co., 226 Mo. 53; Rochette v. Terminal Ry. Assn., 225 S.W. Stanard Milling Co. v. Transit Co., 122 Mo. 258. (4) Plaintiff having failed to make a ......
  • Gray v. Doe Run Lead Co.
    • United States
    • Missouri Supreme Court
    • October 24, 1932
    ...v. Frisco Railroad Co., 9 S.W.2d 976; Watson v. Carthage Marble & White Lime Co., 290 S.W. 651; Morris v. Pryor, 272 Mo. 364; Bowman v. Foundry Co., 226 Mo. 53. (2) court erred in refusing to give an instruction in the nature of a demurrer offered by defendant at the close of plaintiff's ca......
  • Nelson v. Heine Boiler Co.
    • United States
    • Missouri Supreme Court
    • September 13, 1929
    ... ... 317; Shaw v. Bambrick-Bates Const ... Co., 102 Mo.App. 666; Lewis v. Car & Foundry ... Co., 3 S.W.2d 282. (4) The case should not have been ... allowed to go to the jury and the ... Jones v. Gillioz, 9 S.W.2d 89; David v. Cider ... Co., 186 Mo.App. 13; Bowman v. Car & Foundry ... Co., 226 Mo. 53. (b) If an accident might have occurred ... from one of two ... ...
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