Deitderick v. Mo. Iron and Metal Co.
| Decision Date | 30 April 1928 |
| Docket Number | No. 16246.,16246. |
| Citation | 9 S.W.2d 824 |
| Court | Missouri Court of Appeals |
| Parties | WILLIAM DEITDERICK, RESPONDENT, v. MISSOURI IRON AND METAL COMPANY, APPELLANT.<SMALL><SUP>*</SUP></SMALL> |
Appeal from the Circuit Court of Buchanan County. — Hon. Sam Wilcox, Judge.
AFFIRMED.
Brown, Douglas & Brown for appellant.
Mytton & Parkinson for respondent.
This is an action in damages for personal injury. Defendant is a corporation engaged in buying and selling at wholesale, iron, junk iron and other metal commodities, with its plant located at 744 South Fourth street in St. Joseph, Missouri. On July 9, 1926, and prior thereto, the plaintiff was in the employ of defendant as a common laborer. On the date mentioned, defendant had on the tracks at the Missouri Pacific railroad yards a flatcar loaded with old railroad rails. The said car is described as approximately thirty-six feet in length and from eight to ten feet in width, the rails weighed approximately 700 pounds each, and were loaded lengthwise in the car. The most of them were about thirty feet long but some were shorter.
It was the desire of defendant to transfer said rails from the car on which they were then loaded to another flat car and the empty car to be used was "spotted" on the east side of the loaded car in the said railroad yards at a point a few blocks north of defendant's plant, or place of business; the two cars thus standing parallel on adjacent tracks which ran north and south, the loaded car being on the west. The rails were piled on the car to a height variously estimated at two and one-half to three and one-half feet above the floor of the car. Some wooden uprights, or standards at the east side of the loaded car which had held the rails during transportation to the yards, had been removed and placed on the east side of the empty car. The two cars were estimated by witnesses to have been some four feet or more apart. Three iron skids, eight to ten feet in length, provided by defendant, were placed with one end on the empty car and the other resting on the east edge of the pile of rails in the loaded car, and extending somewhat west of the east side thereof. The exact distance of such extensions is in dispute. Plaintiff claims the west ends of the skids were about six inches above the level of the top of the loaded rails, but this statement is disputed by defendant's witnesses. One of these skids was near the center of the two cars, from north to south; one about two feet north of the south end of the cars, and the third was about two feet south of the north end.
On the morning of July 9, 1926, plaintiff was directed by Jacob Adler, defendant's manager, to accompany its foreman, George F. Ferguson, and under his direction to aid in transferring the rails from the loaded to the empty car. Four men besides plaintiff went with Ferguson to do the work. It is in evidence that four men worked on the loaded car in lifting the rails up by means of iron bars about three to four feet in length and placing them on the skids, whereon they would slide down the incline onto the empty car where other men stationed there placed them in position. The foreman, Ferguson, and another worked at the south end of the loaded car while plaintiff and another workman were engaged at the north end.
It appears the general manager, Adler, came to the scene of the labor and was present somewhere about the cars both before and at the time of the accident in question. There is evidence that the skids were not fastened at the ends resting on the empty car; that an indefinite number of rails, perhaps eleven or twelve, had been transferred at the time of the injury; that in lifting the iron rails upon the skids, the rails would sag in the center, thus rendering it necessary to raise the ends thereof high enough to carry them over the end of the center skid; that when the rails were placed, or dropped onto the skids, the two end skids were caused to jar so much that they moved to the east, while the center, or middle one, retained its position; that this movement made the end skids a much less distance above the loaded rails than the center one. There is evidence to the effect that after several rails had been thus transferred, Mr. Adler, the general manager, directed Ferguson, the foreman, to put something at the east end of the skids to prevent their skidding; otherwise they would become uneven and someone would be injured. Ferguson did not do as directed but continued the work as before. Plaintiff's testimony shows that at the time the injury was received the four men on the loaded car were engaged in lifting a rail for placement on the skids, and before plaintiff and the other man at the north end had raised their end high enough to clear the center skid, the men at the south end shoved the other end of the rail to the east, causing it to hit the center skid, being higher than the end skids, thus throwing the north end of the rail to the west and knocking plaintiff down in such a manner that his foot was caught between the rails on the car and he was caused to fall over the north end of the loaded rails, breaking a bone of his left leg, foot or ankle, and wrenching and spraining the muscles, tendons and ligaments thereof. Evidence in behalf of plaintiff is that foreman Ferguson gave the order to shove the south end of the rail before the north end was high enough to pass the center skid. There was testimony in behalf of defendant that the cause of plaintiff's fall was the slipping of his bar in attempting to raise the rail.
The petition charges negligence in that (1) defendant and its foreman in charge of the work carelessly and negligently failed to brace the iron skids or fasten the same in any manner to prevent them from slipping; (2) that defendant negligently required plaintiff to continue at his work with the skids at an uneven distance above the pile of rails, thereby carelessly and negligently furnishing plaintiff a dangerous and unsafe place to work; (3) that defendant carelessly and negligently furnished only four men, including plaintiff, to do the work upon the loaded car; (4) that defendant carelessly and negligently furnished too few men for doing the work safely, in that there were no men at the center skid to prevent its being struck by the rail being lifted; (5) that defendant carelessly and negligently failed and neglected to provide and promulgate any adequate rules for doing said work in safety; (6) that defendant negligently and carelessly gave the different men engaged in the said work different orders and instructions about the method of doing the work, thereby creating confusion, making the work dangerous and unsafe, and causing it to be done in a dangerous and unsafe manner; (7) carelessly and negligently caused the rail which was being lifted at the time of plaintiff's injury, to be shoved, thereby causing the south end of the rail to move east and down the skid, and the center of the rail to strike against the center skid and push the north end thereof west, knocking plaintiff down and causing his injury.
The petition alleges that plaintiff was in the exercise of ordinary care at the time of the injury. Damages are sought in the sum of $15,000.
The answer admits the corporate status of defendant and that plaintiff sustained some injury while employed by defendant about the time and place mentioned in the petition, and denies all other allegations therein contained. As affirmative defense the answer pleads: (1) assumption of risk; (2) contributory negligence; and (3) that if, as alleged in the petition, the north and south skids described in the petition had been allowed to slip down, thereby allowing the middle skid to extend further into the loaded car, and to be higher than the end skids and in such position as to render the work of unloading dangerous or unsafe, plaintiff knew that fact; and that he was guilty of contributory negligence in failing to make complaint of such conditions and in continuing to work under such circumstances, and his own negligence in this respect contributed directly to cause the injuries sustained by him. Upon the issues thus made the cause was tried to the court and jury. Verdict for plaintiff in the sum of $4500 was signed by eleven of the jurors and judgment was entered accordingly. Motions for a new trial and in arrest were overruled and defendant appeals.
It is urged the court erred in permitting plaintiff repeatedly to give his opinions and conclusions as to what caused the accident complained of, and that the admission of such evidence is reversible error. Defendant's brief sets out with particularity the questions and answers to which objection was made as calling for opinions and conclusions; all of these objections were overruled by the court. The charge of error is based upon the examination and cross-examination of plaintiff, some of which it is deemed advisable to quote here. On cross-examination plaintiff testified as follows:
Following this, on redirect examination, Mr. Parkinson asked:
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Dietderick v. Missouri Iron & Metal Co.
...9 S.W.2d 824 222 Mo.App. 740 WILLIAM DEITDERICK, RESPONDENT, v. MISSOURI IRON AND METAL COMPANY, APPELLANT. [*] Court of Appeals of Missouri, Kansas CityApril 30, 1928 ... Appeal ... from the Circuit Court of Buchanan County.--Hon. Sam Wilcox, ... AFFIRMED ... ... Judgment ... ...