Dobromilsky v. American Car & Foundry Co.

• Decision Date: 08 March 1927
• Docket Number: (No. 19577.)
• Citation: 293 S.W. 451
• Court: Missouri Court of Appeals
• Parties: DOBROMILSKY, v. AMERICAN CAR & FOUNDRY CO.

293 S.W. 451

DOBROMILSKY, v. AMERICAN CAR & FOUNDRY CO.

(No. 19577.)

St. Louis Court of Appeals. Missouri.

March 8, 1927.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action for personal injuries by John Dobromilsky against the American Car & Foundry Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Watts & Gentry, of St. Louis, for appellant.

Fred Berthold, John F. Clancy, Mark D. Eagleton, 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 June 20, 1924, when a large and heavy Metal sill which he was engaged in moving in defendant's plant was caused to strike and fracture his left leg. The verdict of the jury was in favor of plaintiff in the sum of $3,000, and judgment was rendered thereon from which defendant, after an unavailing motion for a new trial, has duly perfected this appeal.

The charge of negligence in the petition was as follows:

"(1) Defendant negligently ordered, required, caused, and permitted plaintiff to handle and move said heavy sill, although defendant knew or by the exercise of ordinary care would have known that in so doing said sill was likely to be caused to fall and injure plaintiff as aforesaid and was dangerous and not reasonably safe.

"(2) Defendant negligently assured plaintiff that he could handle and move said sill, as aforesaid, with reasonable safety to himself, although defendant knew or by the exercise of ordinary care would have known that in so doing plaintiff was likely to be injured as aforesaid and was in danger and not reasonably safe.

"(3) Defendant negligently failed to exercise ordinary care to warn plaintiff of the aforesaid dangers and that he was likely to be injured as aforesaid.

"(4) Defendant negligently failed to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work in that he was likely to be injured as aforesaid while engaged thereat.

"(5) Defendant negligently failed to exercise ordinary care to furnish plaintiff with a reason ably safe method and means of doing said work in that said sill was likely to be caused to fall, as aforesaid, and defendant negligently fat ed to provide any protection or device for the prevention of same."

The answer of defendant was a general denial.

Plaintiff was engaged in working at a bench constructed out of four timbers, each 10 inches square and from 30 to 40 feet in length, and so placed on legs as to extend eautwardly and westwardly in defendant's plant. There was a space of 7 or 8 feet between every two timbers, so that the entire width of the bench was approximately thirty feet. At the west side of the bench the ends of the timbers were fastened evenly, but such was not the ease at the east side where the extreme southern timber was some 2 inches longer than the northern one, and the two inner timbers approximately 2 feet shorter than the outer ones.

Across this bench were laid some 30 metal sills, each about 40 feet in length and extending beyond the bench about 8 feet on the north and about 4 feet on the south side. Bach sill weighed from 2,000 to 3,000 lbs. Plaintiff was employed with three fellow workmen in cutting holes in the sills with a reamer, a tool about 3 feet in length. Two men were stationed on the north side of the bench and plaintiff and another on the south side, plaintiff apparently being at the southeast corner. It was the duty of the workmen to cut a number of holes through the tops of the sills, after which the sills were moved a distance of 3 feet apart so that room would be afforded for one of the men to get between two of them and cut certain holes in the edge of each from west to east.

At the time plaintiff received his injury the men on the north side of the bench had completed their work and had departed from the scene, leaving the first sill to the east lying at the extreme eastern edge of the north timber and the second one close against the first. In other words, the two sills had been placed together so that they extended across the bench in a northeastwardly and southwestwardly direction and thus received no support from the two shorter timbers constituting the middle of the bench. Thereafter the foreman directed plaintiff to complete the work of reaming holes in four or five of the fills so that they could be transferred to a machine in another part of the plant. When it became necessary for plaintiff to cut the holes from west to east In the edge of the first sill, the foreman ordered him to move such sill towards the east so that there would be room between the two sills for plaintiff to use the reamer. Plaintiff remonstrated, giving as his reason that there was an available space on the south side of the bench of only 12 or 14 inches in which to move his end of the sill. The foreman, however, ordered him to hurry and do as he had been directed. Plaintiff thereupon, in the presence of the foreman, stood on the east side of the bench and began to pull the sill towards himself. He had succeeded in moving the end of the sill about three inches when the north end, which had been left by the other workmen at the extreme east end of the timber supporting it, slipped off of the timber and rebounded, causing the south end to fall also and strike plaintiff's left leg, fracturing it above the knee.

Defendant offered no evidence after its requested peremptory instruction in the nature of...