Brown v. Quercus Lumber Company, a Corp.

• Decision Date: 18 January 1919
• Citation: 209 S.W. 310,202 Mo.App. 573
• Parties: CLAUDE F. BROWN, Respondent, v. QUERCUS LUMBER COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

209 S.W. 310

202 Mo.App. 573

CLAUDE F. BROWN, Respondent, v. QUERCUS LUMBER COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Springfield

January 18, 1919

Appeal from Butler County Circuit Court.--Hon. J. P. Foard, Judge.

AFFIRMED.

Judgment affirmed.

Sheppard & Sheppard for appellant.

Almon Ing and V. V. Ing for respondent.

BRADLEY J. Sturgis, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.--

Plaintiff sued to recover for personal injury and upon trial before the court and a jury plaintiff recovered, and defendant appealed.

Plaintiff when injured was working on the log yard of defendant helping to unload logs from railroad cars, and piling them on the ground. This unloading was done by means of a derrick. The derrick consisted of a large heavy perpendicular timber called the mast, at the lower end of which was fastened by a hinge joint the boom. Through the upper end of the boom ran a steel cable one end of which was attached to a drum in the engine house, from the other end of the cable swinging free from the upper end of the boom were a block and large tongs. The log was raised or lowered by winding or unwinding the cable on the drum. The boom when the log was raised from the car was swung around by manipulating a throttle on the engine. There was a brake and "dog" on the drum which when in use would hold the drum stationary, and likewise the log at whatever height it might be when the dog was set. Two men were on the car to adjust the tongs, and two on the log pile to which the logs were moved to release the tongs. Plaintiff was on the log pile to which the logs were being moved when injured. After alleging the manner of the unloading, plaintiff alleges: "Plaintiff further states at the time aforesaid, plaintiff and one of his co-employees was upon the said pile of logs in the performance of their duties as aforesaid; that defendant's regular employee in charge of and operating said engine and derrick was temporarily absent, and that defendant, its officers and agents, placed in charge as operator of said engine and derrick during the absence of said regular operator, an inexperienced, unskillful, habitually careless and incompetent employee to-wit, one Richard Benton; that the defendant, its officers and agents well knew, or by the exercise of ordinary care could have known, that said Richard Benton was inexperienced, habitually careless, unskillful and incompetent to operate said engine and derrick, but the said defendant, its officers and agents, carelessly and negligently, at and prior to the date last aforesaid, employed and retained in its employ the said Richard Benton to operate said engine and derick; that as a result of the carelessness and negligence of the defendant, its officers and agents, in employing and retaining in its employ said Richard Benton, for the purpose of operating said engine and derrick, after the defendant, its officers and agents knew, or by the exercise of ordinary care could have known, that said Richard Benton was inexperienced, unskillful, habitually careless and incompetent to operate said engine and derrick with reasonable safety to plaintiff and other employees of defendant working near and around said derrick, and as a result of the inexperience, unskillfulness, habitual carelessness and incompetency of the said Richard Benton, on the date last aforesaid, while lifting a log to said log pile in defendant's lumber yard by means of said engine and derrick, then being operated by said Richard Benton, and without any signal from plaintiff as to the place or time for placing said log, said log was then and there unskillfully and carelessly caused and permitted by said operator of said engine and derrick, Richard Benton, to suddenly, unexpectedly and violently strike plaintiff and knock him down upon other logs and then to strike plaintiff upon his breast and shoulders and knock him from the top of said pile of logs to the ground, a distance of about ten feet, and thus and thereby" injuring him.

The answer is a general denial, contributory negligence and assumption of risk. The facts constituting the alleged contributory negligence are not pleaded. The reply denied generally the new matter set up in the answer. When the engineer Benton swung this log around it was twisting and he let it down to steady it. He was a witness for plaintiff and gives his version as follows: "Frizell and Sizemore put the tongs on this certain log--it was something like eight or ten feet out from the derrick--from the end of the derrick pole--and after they put the tongs into it they gave me the right signal and I pulled the log up and it was twisting in the middle and these two men that was on the pile of logs was supposed to take the tongs out of the log, was back on the back of the log pile. After the log began to swing around to where they could get hold of it, it got to twisting and they signaled to let it down so it could be untwisted in order to place it in the right place and when they done that--when I picked it up again--some way I failed to get the right lever open and it swung around and that caused the log to fall on Mr. Brown. It lowered and dropped before I aimed for it to do so. I wasn't meaning for it to drop at that time. This Thomas Guill that I spoke to about this machine is supposed to be the general foreman of the mill and log yards. He hired me."

Defendant offered no evidence and asked no instructions except one in the nature of a demurrer, which was refused, and did not argue the case to the jury.

The negligence submitted is in failing to exercise ordinary care in having a reasonably competent person in charge of the engine by which the derrick was operated. On this point the evidence shows that at the time plaintiff was injured the regular engineer was engaged in making up a log report, one of his duties, and that he called Benton, whose regular job was that of tong hooker, to operate the engine while he, the regular engineer, was making up the log report. Of the operation of the engine Benton says: "In the month of August, 1917, I lived in Poplar Bluff, Missouri, and was employed by the defendant, as a tong hooker; but sometimes when the operator of the derrick was gone, I ran that machine. My main occupation there at the plant of defendant was hooking tongs on the log yard. I think I began work as a tong hooker there on the 2nd day of June, 1917. I was there on the log yards something like three or four weeks before I attempted operating the derrick and engine. I attempted it the first time along in July, 1917, something like that. I wanted to learn to operate it, you know, I wanted to have a higher position; I wanted to run the engine in the absence of the regular engineer so that if he ever quit I might be able to take his place and that would be a little bit more money for me, and in that way I would be able to better support my wife and children. That was my intention in operating the engine because I wanted to be more than ordinary tong hooker. I never operated a derrick before I commenced over there. I operated this derrick by the authority of Tom Guill. I wanted to handle the engine so I took it upon myself--there was no one at work that day and so I thought I would try and see how I would get along with it, and I picked up a log and worked it. I done this seven or eight times before I said anything to the foreman and then I thought it would be best to see Guill about it then and I spoke to him about it one day at noon and he just says, 'That is all right; be careful and if he ever needs anybody to help him out you go ahead and handle the derrick when he says anything about it.' I did not attempt to put a log on the log pile. Guill had never taken me around there and showed me and found out if I knew. I never told Guill anything about whether I had had any experience with that kind of work. I just asked him if I could and he says yes. Q. Did anybody there attempt to show you how to operate that? Did Decker? A. Why, I had worked it a time or two while he was there. He showed me how the machinery worked--how it was handled--and the way I learned was by watching him and by handling it myself. I remember the day plaintiff was injured. I had been operating the derrick that day some ten or fifteen minutes to the best of my knowledge when Brown was hurt." Benton's experience in handling an engine was operating a hoisting engine at Flat River which he says was "nothing like the boom and derrick I had out there at Quercus," and this he operated for less than a year, and what experience he had had on the engine he was operating when plaintiff was injured, which was only a few minutes at a time over a period of from some time in July until August 31st, when plaintiff was injured.

Defendant...