Clark v. St. Louis & S. Ry. Co.

Decision Date09 May 1911
Citation137 S.W. 583,234 Mo. 396
CourtMissouri Supreme Court
PartiesCLARK v. ST. LOUIS & S. RY. CO.

Graves, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by C. E. Clark against the Union Iron & Foundry Company and the St. Louis & Suburban Railway Company. From a judgment in favor of plaintiff against the railway company, it appeals. Reversed and remanded, with directions to hold the judgment in abeyance until final disposition of the case as to the defendant, the Union Iron & Foundry Company, and then to enter judgment for plaintiff for the amount of the verdict and interest to the date of its rendition.

Boyle & Priest and T. M. Pierce, for appellant. Wm. McNamee and A. R. Taylor, for respondent.

WOODSON, J.

The following opinion of WOODSON, J., handed down in Division No. 1 of this court, affirming the judgment of the circuit court, is adopted as the opinion of the court in banc. All concur, except GRAVES, J., who dissents.

"The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendants to recover $30,000 damages for personal injuries sustained by him on January 17, 1905, through the alleged negligence of the defendants. A trial was had before the court and a jury, which resulted in a verdict and judgment for the plaintiff against the defendant railway company for the sum of $20,000, and in a verdict and judgment in favor of the defendant Iron & Foundry Company. From the former judgment, the railway company duly appealed to this court; and from the latter the plaintiff duly prosecuted its appeal, which will be considered in a separate opinion, 137 S. W. 577. The facts of the case are practically undisputed, but whatever disputes there are will be duly noted in the course of the opinion.

"The plaintiff was a structural iron worker, employed by the defendant iron and foundry company, a corporation, engaged in the construction of an iron coal chute for and on the premises of defendant railway company, a corporation, engaged in the street railway business in the city of St. Louis. This coal chute was being constructed between the power house of the defendant railway company and the tracks of the Wabash Railway Company on the west. On the date of the injury the defendant railway company was maintaining poles for carrying large wires, called feed wires, heavily charged with electricity, leading from its power house to various stations along its lines of road for the purpose of furnishing motive power for its street cars. These wires passed from the power house, resting upon the cross-arms of the carrying poles, about 25 feet above the surface of the earth, and passed within 15 or 20 feet of the coal chute so being constructed. James Stewart & Son were the general contractors with the defendant railway company for the work, and had exclusive charge and control of the same, and the defendant iron and foundry company was the subcontractor to do the ironwork on the structure; and respondent Clark, as before stated, was an employé of the latter company. At the time of respondent's injury he was assisting in the erection of said coal chute, subject to and in obedience to the orders of his foreman, Samuel Armstrong. He was standing on the cross-arms of one of these poles, engaged within the line of his duty of passing a guy rope, made of rope and steel blocks, over the wires on said pole, for the purpose of securing a gin pole used by the iron and foundry company in hoisting materials to be used in the construction of said chute. This guy rope was quite heavy, weighing about 75 or 100 pounds. The respondent's evidence tended to show that the usual and practical and safe mode of getting the rope over the wires was to have a man ascend the pole and stand on the cross-arm and one wire and let down a hand line to the ground, and then have the guy rope attached by its end to the hand line so lowered, and then for the man on the pole to raise the end of the guy rope up by pulling the hand line, and, when up, take the rope in his hands and pass it over the wires. The appellant's evidence tended to show that the best, safest, and most practical way to pass the guy rope over was for the man to stand on the ground and throw the hand line over the wires, attach it to the end of the guy rope, and then pull on the hand line until the guy rope passed over the wires. The guy rope was about 75 feet long, with one end fastened to the top of the gin pole, and the other to a post or iron beam firmly set in the ground some distance from the gin pole and made taut so as to...

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