Courtois v. American Car & Foundry Co.

• Decision Date: 06 April 1926
• Docket Number: No. 19268.,19268.
• Parties: COURTOIS v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

282 S.W. 484

COURTOIS v. AMERICAN CAR & FOUNDRY CO.

No. 19268.

St. Louis Court of Appeals. Missouri.

April 6, 1926.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially -published."

Action by Francis Courtois against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant on February 11, 1924. The verdict of the jury was for plaintiff in the sum of $1,750 and judgment entered thereon, from which defendant has appealed.

The negligence counted upon in plaintiff's petition is as follows:

"That, at the time plaintiff was injured, as aforesaid, and for some time next prior thereto, he was in the service of defendant as a common laborer at said plant, and, in the discharge of the duty of his said employment under defendant, was engaged, along with other employés of defendant in said yards, in holding and moving and carrying metal rails, and defendant at said times negligently required plaintiff to work with other employés in holding and moving and carrying said rails who were foreigners and unable to understand or comprehend defendant's language or its orders or directions while engaged in said work, and by reason thereof there was probable danger of said foreigners mistaking orders and thereby causing things to strike and fall on plaintiff and injure him or cause him to be injured, and defendant negligently required plaintiff, while engaged in said work, to be and travel over and upon material of sufficient size and frequency to hinder his travel, and, at the time plaintiff was injured, as aforesaid, and for a long space of time next prior thereto, said place in said yard where plaintiff was required to hold and carry and move said rails was not a reasonably Safe place for plaintiff to engage in said work, because said materials were, as aforesaid, where he was required to be and travel as aforesaid, and there was probable danger of plaintiff slipping or stumbling over some of said material and thereby causing the rail he was helping to carry to fall and jerk and strike plaintiff and injure him, or cause him to be injured, and defendant knew, or by the exercise of ordinary care would have known, of the above-mentioned matters and things before plaintiff was injured, as aforesaid, and in time to have, by the exercise" of ordinary care, remedied said unsafe matters and things, and thereby averted the injuries to plaintiff, as hereinafter mentioned, but defendant negligently failed to do so, and, after defendant knew, or by the exercise of ordinary care would have known, of the above matters I and things, it negligently required plaintiff to work at holding and carrying and moving said rails, all with said foreigners, all without protection of any kind to him."

The answer was a general denial.

The evidence disclosed that plaintiff, 50 years of age, was engaged in assorting some steel rails which were piled in defendant's yard. This work was being done under the direction of a foreman named J. W. Gibson. Harry Gibson, the son of the foreman, Perry D. Mosby, and three Mexicans, who were unable to speak or understand English,, were engaged with plaintiff in this work, which consisted of carrying the rails from the one pile to another pile about 10 feet away. All six men were used to carry each rail, and four or five of the rails had been moved in this manner before plaintiff's injury was received. The Mexicans had assisted in moving each rail. Plaintiff testified that, when the rail was carried to the second pile, it was customary for the foreman to give the command "Drop it," whereupon the Americans would let loose of the rail and the Mexicans, observing the conduct of the Americans, would let go also.

At the time plaintiff was injured, a rail 23 feet in length and weighing from MO to 700 pounds was being carried. Plaintiff was at one end of the rail, the Mexicans about 12 feet from him, and at the other end were Gibson and Mosby. When the command to pick up the rail was given, the three Americans stooped down and took hold of it, which movement was followed by the Mexicans.

Between the two piles the ground was covered with pieces of pig iron from a foot and a half to 2 feet in length and 6 or 7 inches high. In moving the rail, it became necessary for plaintiff to walk over these pieces of pig iron. The foreman, observing that plaintiff was walking with difficulty, said, "Be careful," whereupon the Mexicans, although they had not yet arrived at the second pile, released their hold on the rail and a second or two later Gibson and Mosby dropped it, leaving plaintiff alone holding the rail. When the rail was dropped, plaintiff stumbled over the pig iron and fell, and was struck upon the right side by the rail as it rebounded.

The foreman, Gibson, called as a witness for defendant, testified that he usually gave an order for the men to pick up the rail so that they would all act together. He further testified that, whenever the men carrying the rail had taken it to the dropping point, it was necessary for some one to give the command to drop it so that they would all release their holds together, and that that was the proper way to do the work. In this testimony he was corroborated by his son, Harry Gibson, who was also put upon the stand by defendant.

Plaintiff had been working for defendant for two months when he was injured, and had observed the Mexicans around defendant's plant during that time, but had never worked with them until the day his injury was received.

Defendant first makes the point that the court erred in failing to sustain both of its demurrers to the evidence. Defendant, however, did not stand upon its demurrer offered at the close of plaintiff's case, but put in its own evidence, so that the correctness of the court's ruling on the demurrer to all the evidence is the only point to be reviewed. Canty v. Halpin, 242 S. W. 94, 294 Mo. 96; Burton v. Holman, 231 S. W. 630, 288 Mo. 70; Simpson v. Wells, 292 Mo. 301, 237 S. W. 520; Melican v. Whitlow Cons. Co. (Mo. Sup.) 278 S. W. 361; Larkin v. Wells (Mo. App.) 278 S. W. 1087.

In this connection we are mindful that, in considering defendant's demurrer at the close of the entire case, plaintiff must be given the benefit of all testimony that has been adduced in his behalf and any favorable testimony that has been given by defendant's witnesses, in addition to which plaintiff must be allowed the benefit of reasonable inferences of fact `on all the proof. Williams v. Kansas City S. It. Co., 165 S. W. 788, 257 Mo. 87, 52 L. R. A. (N. S.) 443; Stauffer v. Met. St. Ry., 147 S. W. 1032, 243 Mo. 305; Pullen v. Hart, 238 S. W. 437, 293 Mo. 61; Peters v. Lusk, 206 S. W. 250, 200 Mo. App. 372; Watts v. St. Joseph Lead Co. (Mo. App.) 243 S. W. 439; Larkin v. Wells, supra.

In the light of the above rule we think that there was evidence from which the jury could have found with propriety that it was customary for the foreman at the proper time to give the command to drop the rail; that the Mexicans, because of their inability to understand the English language, misinterpreted the foreman's cautionary statement as an order to drop the rail; that, after the rail was released by the Mexicans, Gibson and Mosby let go of it because they could no longer hold its weight, and that the premature dropping of the rail caused plaintiff, who still retained his hold on it, to stumble over the pig iron and sustain his injury. It would seem, therefore, that the demurrer was properly overruled.

Defendant argues most strenuously, however, that it was not negligence for it to employ foreigners, who could not understand the English language, for use in common labor. In so far as we have been able to determine, this precise question is a matter of first impression in Missouri. We concede, however, as a general rule of law, that defendant's argument is well taken. To hold...