Dixon v. Frazier-Davis Const. Co.

• Decision Date: 10 October 1927
• Docket Number: No. 26257.,26257.
• Citation: 298 S.W. 827
• Parties: DIXON v. FRAZIER-DAVIS CONST. CO.
• Court: Missouri Supreme Court

298 S.W. 827

DIXON v. FRAZIER-DAVIS CONST. CO.

No. 26257.

Supreme Court of Missouri, Division No. 2.

October 10, 1927.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

Action by Charles C. Dixon against the Frazier-Davis Construction Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Jourdan & English, of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

DAVIS, C.

This is an action for personal injuries by the servant against the master, based on various acts of negligence relative to the falling of a bracket, attached to the girder of a viaduct then in the course of being demolished, the horizontal arm of which became detached as the result of disintegration and on which arm plaintiff sat while dissevering the oblique or lower arm with an acetylene torch, whereby he was caused to fall to the ground 30 feet below. The jury returned a verdict for $10,000 in plaintiff's favor, defendant appealing from the judgment entered thereon.

The petition alleges, in substance, that defendant was engaged in wrecking and tearing down a structure in the city of St. Louis, known as the Fourteenth street viaduct; that plaintiff was an employee of defendant; that while working as such employee on a bracket, the bracket became detached from the girder of said viaduct, so that it fell with plaintiff on it to the ground below, greatly injuring him. The petition comprises six specifications of negligence: (1) Negligently failing to use ordinary care to furnish plaintiff a reasonably safe place in which to work, in that plaintiff was suffered to work on the horizontal upper arm of the bracket, and that the bracket, at its point of connection with the girder, and the girder were old, weak, and rusty and likely to collapse and fall with persons working on it and negligently failed to fasten the bracket or furnish a scaffold or other place to stand, and that said place of work was not reasonably safe and was dangerous, all of which defendant knew, or by the exercise of ordinary care could have known. (2) Defendant negligently directed plaintiff to work on the bracket when it knew, or by the exercise of ordinary care could have known, of the defect. (3) Defendant negligently assured plaintiff of the safety of the bracket as a place to work. (4) Defendant negligently failed to inspect the bracket before plaintiff was required to work on it. (5) Defendant negligently failed to warn plaintiff against the danger of working on the bracket. (6) Defendant negligently failed to adopt a reasonably safe method of doing the work.

The answer was a general denial and a plea of contributory negligence to the effect that plaintiff negligently failed to look, watch, and pay attention to his own safety; negligently caused, suffered and permitted a bracket to be loosened and detached from a girder while he was resting his weight thereon. Plaintiff's reply to defendant's answer was a general denial.

The history of the case develops that defendant, on June 22, 1923, the day of the occurrence, was engaged in wrecking and tearing down a structure in the city of St. Louis, known as the Fourteenth street viaduct, over the Mill creek valley, which bridged a network of railroad tracks leading to and from the Union Station. Plaintiff was an experienced bridge and structural ironworker, having followed that line of work for 12 years.

The bridge was being demolished, it seems, because a train bad left the tracks, colliding with one of the center piers on which the bridge rested, causing the central portion to collapse and the bridge to become so shaken that it was thought that its condition, if restored, would probably be dangerous.

The structure consisted of steel beams, girders, columns, and brackets. Running north and south, carrying the main roadway of the bridge, were large I-beams or girders to which were attached, at intervals of 14 feet, brackets 3 feet in length, which had carried the sidewalks. These brackets were fastened to the main girders by rivets, the horizontal arm of which extended therefrom at right angles. The brackets were triangular in form, consisting of three arms, horizontal, oblique, and vertical, the latter lying flush against the girder, with the oblique arm running from the outer end of the horizontal arm to the lower end of the vertical. The inner portion of the triangle was made up of steel webbing. The arms were 3 to 4 feet long, about 3 inches wide and three-fourths of an inch thick.

The bridge was owned by the city of St. Louis, the defendant wrecking it as contractor. The taking down of the north end had been completed prior to the accident, the south portion then being in the course of demolishment. All material comprising the sidewalks had been taken up and removed, saving these brackets, which were being burned off with an acetylene torch.

Plaintiff's advent to the work resulted from defendant's superintendent communicating with the local union of bridge and structural ironworkers, which sent six men to the work, among Whom were plaintiff, witness Sargent, plaintiff's helper, and Sargent's father, termed a pusher. The evidence failed to further mention or individuate the work of the three other men. On coming to the work plaintiff designated himself "the burner." Plaintiff and the superintendent conferred and advised relative to the work. Tools and apparatus were provided, and, in addition to other work, plaintiff proceeded to burn off the brackets. He had theretofore burned eight or ten brackets before the fall occurred. Plaintiff, following the precedure used in burning the other brackets, with the visual knowledge of defendant's superintendent as to the course pursued as to the other brackets, went upon the bracket that fell with him, sat astride it facing the girder, with his legs entwined to keep from falling, adjusted his goggles, and then by means of the acetylene torch burned off the oblique or lower arm of the bracket at or near its connection with the girder, between himself and the bridge. It seems that the horizontal arm of the bracket had through rust and disintegration become dissevered from the girder, and had been for such a length of time that paint theretofore applied bad seeped down and covered the end of the bracket separated from the girder.

Defendant's superintendent admitted that he had seen plaintiff walk out on the upper or horizontal arms of the other brackets, straddle them, cross or lock his legs, lean forward upon the bracket with his head toward the girder and burn through the oblique or lower arm with the torch, while sitting upon the horizontal arm which supported his weight. Having severed the oblique arm, he would then arise and return to the girder, from which place he would burn loose the horizontal or upper arm of the bracket, thus causing it to fall to the ground. While astride the horizontal arm of a bracket, following the same course of procedure, the bracket fell with him 30 feet to the ground as he burned loose the lower arm, the upper arm having become theretofore dissevered from the girder. Plaintiff stated: That the bracket that fell with him failed to vibrate, without an occurrence tending to arouse his suspicions with respect to danger. That the customary method of testing the stability of a bracket was to strike it at its point of contact with the girder, using a 5 to 8 pound hammer, thus determining its tensile strength to hold the weight of the worker. That he had not seen defendant make any test. The superintendent of defendant stated that he made no hammer test, but that he had walked over the bridge, looking at the brackets and their contact with the girder, kicking them with his foot, and walking out upon several of them to test vibration, without further or other inspection. The superintendent further stated that testing the bracket with a hammer, as suggested by plaintiff, would not reveal the separation of the horizontal arm of the bracket from the girder. Plaintiff stated that he did not Inspect the bracket or test it with a hammer, suggested by him as the customary method of testing its strength. Plaintiff's evidence tended to show that the usual and customary method of working, in burning loose the brackets, was to sit on the horizontal arm while burning loose the oblique arm. Defendant's evidence tended to show that it was optional with the workman to sit either on the horizontal arm or the girder while dissevering the oblique arm, but that it was the easier method to sit on the bracket, and that the bracket was not expected to fall upon the severance of the oblique arm. Other facts, if any, germane to the questions raised will be later noted.

I. The initial assignment of error charges the trial court with error in striking from the answer the plea that plaintiff assumed the risk as to obvious dangers, which were, or by the exercise of ordinary care could have been, known to him. It is apparent from the pronouncements of this court that a servant never assumes the risk of the master's negligence. Suffice it to say that no error was committed in that regard, for the risks which the servant assumes are those necessarily incident to the service, which may be shown in confutation of the master's negligence under a general denial. A discussion of the doctrine may be found in Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Patrum v. Railroad, 259 Mo. 109, 168 S. W. 622; Williamson v. Light & Power Co., 281 Mo. 544, 219 S. W. 902; Doody v. Woolen Mills (Co. (Mo. Sup.) 274 S. W. 692. We think it unnecessary to expatiate the subject there developed and amplified.

II. The second assignment relates to the refusal of the trial court to give instructions to the jury in the nature of demurrers to the evidence. It is based, first, on the failure of the evidence to develop negligence on the part of defendant; and, second, on the assumption that the evidence develops that plaintiff...