Clark v. Widmer Engineering Co.

• Decision Date: 06 June 1924
• Docket Number: No. 18619.,18619.
• Citation: 263 S.W. 500
• Parties: CLARK v. WIDMER ENGINEERING CO.
• Court: Missouri Court of Appeals

263 S.W. 500

CLARK v. WIDMER ENGINEERING CO.

No. 18619.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied June 24, 1924.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by Oliver Clark against the Widmer Engineering Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

Banister, Leonard, Sibley & McRoberts, of St. Louis, for appellant.

Edward W. Foristel and O. J. Mudd, both of St. Louis, for respondent.

NIPPER, C.

This is an action for damages for personal injuries sustained by plaintiff while he was engaged with other workmen in unloading radiators from a box car. The petition originally contained five assignments of negligence. Two of these were dismissed, and when the case proceeded to trial there were three assignments of negligence in the petition. It is first charged that the defendant was negligent in ordering and directing plaintiff and other workmen of defendant to remove these radiators from said box cars with their hands, and without using certain pieces of timber for the purpose of letting said radiators down upon boards or rollers in the car. The second assignment is based upon the allegation of negligence in ordering and directing plaintiff and other workmen to remove said radiators by means of said boards and rollers on account of insufficient space in which to move about in said car and handle said radiators. The next assignment is based upon defendant's failure to use reasonable care to furnish plaintiff with reasonably safe appliances, in that it failed to furnish plaintiff with certain timbers for the purpose of letting said radiators down upon boards resting upon rollers. The answer was a general denial, coupled with a plea of contributory negligence, and assumption of risk. Plaintiff recovered judgment in the sum of $6,250, and defendant appeals.

Plaintiff was a common laborer, 67 years old. The defendant was engaged in erecting a building, and employed plaintiff as a laborer. The day before plaintiff received his injuries, he and three other laborers were ordered by defendant's foreman to enter a box car standing upon the tracks of the Missouri Pacific Railroad Company, filled with radiators, and unload the same. These workmen were furnished with rollers on which planks were placed. The radiators were let down on the planks and then rolled out of the car. This box car was standing east and west, and the laborers employed to unload the same entered from the north side of the ear; the door on the south side being closed. These four laborers, on the first day they worked in unloading this box car, were furnished with crowbars and two pieces of 4×4 timbers about 8 feet long. These radiators were about 5 feet high, 7 or 8 feet long, and 12 inches thick, and weighed from 1,200 to 1,800 pounds. Some of the radiators stood erect in the car, and others were tilted or leaning against those standing erect. The laborers, in unloading the car, would place these rollers on the floor alongside of a radiator, then place planks on the rollers, and if the radiator was tilted or leaning against another radiator it would be pried to an erect position with the crowbar. Then two of the laborers would take one of these pieces of 4x4 timbers and place it against the radiator near the end, and the other two would handle the other end of the radiator in the same way. The radiator would then be turned over on its side against these timbers, and the four men would then let the radiator down on the planks and it would be rolled out the door and onto the ground.

On the morning of the second day, a short time after these four men had started to work, defendant's foreman directed them to quit using the 4x4 timbers, as that method was too slow, and the defendant was anxious to get the car unloaded so as to save demurage. Two additional men were placed on the job, making six in all, and they were placed at work unloading the radiators by hand. The same method was used as the day before, with the exception that no timbers were used in letting the radiators down on the rollers. The six men were compelled to use their hands in letting the radiators down. Two or three radiators had been unloaded on the morning plaintiff received his injuries when these six men undertook to unload a radiator standing near the center of the car and against the south door thereof. Plaintiff took his position next to the south door of the car, and when six men were placed alongside the radiator for the purpose of letting it down on the rollers, the radiator being only 7 or 8 feet long, plaintiff was crowded against the south door of the box car. When they started to let this radiator down by hand, and had tilted it over a part of the way or at such a point where they usually changed their hands, placing them under the radiator for the purpose of letting it on down on the planks, plaintiff's left arm was pressed against the door facing of the car, and he called to the other workmen to "hold." But they were unable to hold the radiator, and let it down on the platform, and in doing so plaintiff's arm, as stated, was caught against the door facing and injured in a manner we will describe later. There was no foreman in the car at the time the accident happened. The men were all laborers of equal rank and station.

Witness Hornbuckle, who was working with plaintiff the day he received his injuries as well as the day before, describes the method of handling the radiators with the timbers as follows:

"Q. These timbers you call four-bys were of what kind of lumber? A. Yellow pine.

"Q. Will you tell us about how long those four-bys were? A. Between seven and eight feet long, I guess. I don't know exactly, sure. They just would go in the door of the car and they were long enough so we could use them inside of the car without hitting the roof when they was standing on end.

"Q. You had them just long enough so when you set them up on end to let these radiators down they wouldn't touch the top of the car? A. Yes, sir; we would set them up alongside of the radiator and then pull the radiator back until it rested on the four-bys, and then we would get the timber on our shoulders, and when we got it all set ready to come back, one man would ease back a bit, and then we would stop it, and the other men would inch-back a bit, and finally the last man would inch-back, and we would keep coming on down with it until we got it in a position where we could drop it on the ground."

He also testified that defendant's foreman told them, on the morning plaintiff received his injuries, to do away with the timbers and handle them by hand as they were not getting them out fast enough by that method. This witness also testified that he had seer radiators unloaded for 20 years, and when asked whether or not timbers were generally used in removing them, said: "Lots of times we used timbers."

Plaintiff received a fracture of one of the bones at the wrist, causing the wrist to become stiff and with a range of motion about one-third normal. This condition was pronounced permanent. There was inability to close the fingers of the left hand in the normal way. There was other testimony with reference to plaintiff's injuries, which we will refer to in the course of the opinion because the defendant contends that the admission of such testimony was error. We might also add here that the evidence of the witness Hornbuckle tended to show that four men, using the timbers, could handle these radiators very easily and safely, and that six men, without the timbers, and using only their hands, could not do so.

It is insisted by defendant that this case should not have gone to the jury, and its instruction in the nature of demurrers should have been given, because no jury should be permitted to say that it is negligence to perform such an operation as plaintiff was performing by hand. The gist of this action is based upon defendant's failure to furnish proper and necessary appliances with which to move these radiators; and in negligently ordering plaintiff and the other workmen to remove them by hand when there was not sufficient room for six men to work around a radiator of the size...