Daggett v. American Car & Foundry Co.

• Citation: 284 S.W. 855
• Decision Date: 04 May 1926
• Docket Number: No. 19288.,19288.
• Court: Missouri Court of Appeals
• Parties: DAGGETT v. AMERICAN CAR & FOUNDRY CO.

284 S.W. 855

DAGGETT v. AMERICAN CAR & FOUNDRY CO.

No. 19288.

St. Louis Court of Appeals. Missouri.

May 4, 1926.

Rehearing Denied June 1, 1926.

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

"Not to be officially published."

Action by Joseph R. Daggett against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Mark D. Eagleton, Everett Hullverson, and Harry S. Rooks, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on April 12, 1924, while in the employ of defendant. The verdict was for the plaintiff in the sum of $3,000 and judgment entered thereon, from which defendant has appealed.

The petition counted upon the following assignments of negligence: First, that defendant, while plaintiff's foot was in close proximity to a bundle of iron bars which were about to be moved upward by means of a crane, negligently ordered, directed, caused, suffered, and permitted the crane to pick up the bars, when defendant knew, or by the exercise of ordinary care could have known, that in so moving said bars at said tide plaintiff's foot was likely to be caught and injured ; second, that defendant negligently failed to warn plaintiff that the crane was about to move the bars upon which his foot was resting; and, third, that defendant negligently failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work.

The answer was a general denial, coupled with a plea of contributory negligence to the effect that plaintiff in the exercise of ordinary care for his own safety should have moved his foot out of the way of the material which was to be lifted, but failed to do so.

The reply is not set out in the abstract of the record, but it appears that the case was tried as though the new matter in the answer was at issue.

The evidence disclosed that plaintiff was employed by defendant in February, 1924, and was put under the control of a foreman named Yochum. At first plaintiff was engaged in cutting scrap iron, but was later put to work as a helper to the operator of a punch press. When plaintiff was assigned to the punch press, Yochum instructed him as to his duties, and told him that the operator of the press would give him his instructions and that he should do whatever the operator told him. On the day that plaintiff was injured, the operator of the press was a man named Evans, who had been assigned to that work by Yochum, and from whom plaintiff received his orders. Sufficient material was not supplied for the operation of the punch press, and accordingly Evans ordered plaintiff to go over and help the crane men move the material over to the punch press and to do whatever the leader of the crew asked him to do. The crane was about 30 feet away from the punch press. Plaintiff had never helped do this kind of work before.

The crew of men working at the crane consisted of an operator, who was stationed in the cab of the crane and operated it pursuant to orders and signals, and two chain men who worked on the ground, attaching and detaching the material to and from the cables. One of these chain men was the leader who always gave the orders or signals to the operator of the crane. Signals were given by signs ; raising the hand being the signal to hoist the material, while holding the hand down meant to lower. As soon as plaintiff went over to assist the crane man, he reported to the one who gave the orders. This man then placed a chain around one end of a bundle of iron bars to be moved and ordered plaintiff to place a chain around the other end. These bars were stacked on the ground in bundles, the stack being about 4½ feet high. The bundle that was being moved was on the top, and plaintiff was forced to climb upon the pile so as to be able to loop the chain around it. The chain that plaintiff had fastened slipped too far towards the middle of the bundle, whereupon the leader motioned for him to move it back towards the end. Plaintiff understood what was meant by the signal and started to obey it. He stepped up on top of the bars with his left foot in order to reach the chain and started to pull it back towards the end of the bundle. While he was in this position, the crane was started, moving the chain with a quick jerk and shifting the iron bars so as to crush and severely injure plaintiff's left foot. No warning was given plaintiff that the crane was about to be moved, nor did he see a signal given because the leader was standing back of him ; but when he looked up after the accident he saw that the leader had his hand up. When his foot was caught, plaintiff shouted, and the leader immediately gave the signal to lower. The bundle of bars was lowered as quickly as possible, and plaintiff's foot was released.

Defendant introduced no evidence. An instruction was offered by plaintiff and modified by the court which submitted the case to the jury upon the negligence of defendant in ordering and signaling the crane to be ,started in operation when plaintiff was in a position of danger, and in causing the material to be moved without warning the plaintiff. Defendant offered no instructions except the peremptory one in the nature of a demurrer to the evidence, which was refused by the court. The ruling of the court in that respect is assigned as error.

Defendant contends that its demurrer should have been sustained for the reasons that there was no evidence that the chain man gave any signal which caused the crane to be started in motion, and that absent such evidence, and absent any evidence showing that the chain man was defendant's vice principal, no case was made for the jury. It is true that plaintiff testified that he did not see any signal given because the leader of the chain men was standing back of him ; but, after he was injured, he glanced at this chain man and observed that he had his hand up. It will be recalled that raising the hand was the signal for the material to be hoisted, and, consequently, we cannot say that there was no evidence from which the jury might have reasonably inferred that a signal to start the crane was given. Defendant argues, however, that this chain man ande plaintiff were fellow servants. We will concede that under the fellow-servant rule the master is not liable for injury to one of his servants, absent a breach of a nondelegable duty of the master, if the injury results from the negligent act of a fellow servant engaged in the same common service. But, in the case at bar, plaintiff was ordered by Evans, concededly a vice principal, to go over and help the crane men move the material over to the punch press and to do whatever the leader of this crew asked him to do. The chain man to whom he reported was the one who always gave the...