Crowley v. St. Louis-S. F. Ry. Co.

• Decision Date: 21 June 1929
• Docket Number: No. 20765.,20765.
• Citation: 18 S.W.2d 541
• Parties: CROWLEY v. ST. LOUIS-S. F. RY. CO.
• Court: Missouri Court of Appeals

18 S.W.2d 541

CROWLEY v. ST. LOUIS-S. F. RY. CO.

No. 20765.

St. Louis Court of Appeals. Missouri.

June 21, 1929.

Rehearing Denied July 2, 1929.

Appeal from St. Louis Circuit Count; John W. Calhoun, Judge.

"Not to be officially published."

Action by Sidney Crowley against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and, from an order granting defendant's motion for a new trial, plaintiff appeals. Order affirmed.

Douglass & Inman, of St. Louis, for appellant.

E. T. Miller, A. P. Stewart, and C. H. Skinker, Jr., all of St. Louis, for respondent.

HAID, P. J.

In the trial court the plaintiff in this case had a judgment for $7,500. This appeal is from an order granting defendant's motion for a new trial.

Plaintiff was a member of a bridge gang on defendant's railroad, and on May 7, 1926, was engaged with others in lining the rails on one of defendant's bridges near Crystal City, Mo.

It is conceded by both parties that plaintiff's employment was interstate. On May 7, 1926, while aiding in lining the rails on the bridge with a claw bar, the claw bar turned and slipped, causing plaintiff to fall from the bridge and sustain the injuries complained of. The petition counts on three grounds of negligence, as follows:

(1) That the claw bar aforesaid was not a reasonably safe tool to use in doing said work, in that said claw bar was rounded, and the upper end of said claw bar, when used to line a bridge, was enlarged and heavy, on account of which conditions there was danger of said claw bar turning and slipping as aforesaid, all of which defendant knew, or by the exercise of ordinary care would have known; and defendant was negligent in furnishing to plaintiff the claw bar aforesaid for the purpose of doing the work aforesaid.

(2) That it was customary in lining bridges as aforesaid to use lining bars, or bars with a flat surface which would fit against the lower edge of the rail, and without an enlarged, heavy upper end, which said lining bar was a reasonably safe tool to use in doing said work; and defendant negligently failed to furnish plaintiff with such a lining bar for the purpose of doing the work aforesaid.

(3) That defendant's foreman knew, or by the exercise of ordinary care could have known or should have anticipated, that the claw bar aforesaid was apt to slip and cause plaintiff to lose has balance and fall and be injured; and defendant's foreman negligently ordered and directed plaintiff to use the claw bar aforesaid, thereby causing plaintiff's injuries.

The answer was a general denial coupled with a plea that whatever danger there was of said claw bar slipping and turning and causing plaintiff to fall from said bridge and be injured when plaintiff was using it to move said rail on the occasion in question was open, obvious, and known to plaintiff, by reason whereof defendant avers that plaintiff assumed the risk of said claw bar slipping and turning and causing plaintiff to fall and be injured.

The first question raised is that the court erred in sustaining the fourth ground of the motion for new trial which attacked the action of the court in its failure to have given defendant's peremptory instruction at the close of the whole case.

The plaintiff testified in effect that at the time of the accident he had been employed by the defendant about three months, and had actually been engaged in bridge lining about ten or twelve hours; that on the day in question, after he had gotten the spikes pulled, he asked the foreman what to do, and was told to help the other men line the bridge; that he was using a claw bar in pulling the spikes, and the foreman told him to bring his claw bar down and help line the bridge, which he did; that he took the bar, placed it on the stringers, tried it by first putting it under the rail and pulling up to see if it would hold, and it seemed safe enough; that, when they hollered, he pulled, the claw bar twisted in his hand, then it slipped, and that caused him to lose his balance and fall off the bridge; that three or four days before that he had a conversation with the foreman about the use of claw bars in lining the bridge; he had seen a man use a claw bar and it slipped with him, and he ran into a man who was lining on the opposite side and cut the latter's face; that he went to the foreman and told him he saw what happened and that there might be some danger in using the claw bar; the foreman said he did not know them to slip very much, to go ahead and work with them to the end of that week, and he would have some more lining bars coming in, that he had some ordered; that all he ever saw the lining bar used for was for lining track; that, in order to line the track, it is necessary to slip the bar in between the ties, and it comes in under the rails; that he had used lining bars in lining bridges and had never known one to slip; that he did not claim the claw bar he was using was worn out; that the end of the lining bar comes down straight to a wedge shape; that the side is straight; that the foreman had men using lining bars lining the rails; the lining bar was not likely, in his judgment, to slip and throw a man off a bridge; the claw bar with a crooked end is a dangerous and unsafe tool for that work; that before he was hurt he thought the claw bar was a reasonably safe tool to use, but, after he saw it slip with the other man, the day before his accident, he thought there might be some danger in it; that the day before his accident he thought it was a reasonably safe tool, but since his accident he had changed his mind about it; he knew how the claw bar was made, and had seen one slip with another man several days before; that he complained to his bridge foreman three or four days before the accident and asked him if the claw bar was dangerous to work with; he did not regard the timber bar as safe as the lining bar; that, as compared with the claw bar, the timber bar has a more flat surface on the base to keep it from turning over, while the claw bar is round; that the only complaint he makes of the claw bar is that it is round and the claw on it gives it a chance to turn over, and, because of its being so heavy at that end, will make it off-balance; that, when the foreman told him to help line the bridge, he told him to bring his bar; that he did not have any other bar except the claw bar in his hand at the time; that there were no lining bars accessible to him; that there were only two or three lining bars in the gang and there were four to six men lining at the time; the rest of the men used either the claw bar or the timber bar.

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