Frese v. Wells
| Decision Date | 24 June 1931 |
| Docket Number | 29599 |
| Citation | 40 S.W.2d 652 |
| Parties | FRESE v. WELLS et al |
| Court | Missouri Supreme Court |
T. E Francis, B. G. Carpenter, and Woodward & Evans, all of St Louis, for appellants.
F. A Foster, Strubinger & Strubinger, and Allen Moser & Marsalek all of St. Louis, for respondent.
This is an action for damages for personal injuries. Plaintiff was a lineman in the employ of defendant Wells, receiver of United Railways Company. Defendant St. Louis Public Service Company voluntarily entered its appearance and assumed the liability, if any, of defendant Wells. Plaintiff was injured on December 21, 1925. On that date he went with a gang of other linemen, in charge of two foremen, to a place in St. Louis county where new poles were being installed along defendants' railway tracks. At that time the power wires and other wires used in the operation of defendants' electric railway were attached to poles about 241/2 feet high. New poles were being installed about 5 feet higher than the old ones. Plaintiff was ordered by one of the foremen to climb pole No. 398, which was one of the old poles, located on the south side of defendants' tracks, at a point where the tracks which ran approximately east to west made a slight curve to the north. This pole had three sets of cross-arms. Each set consisted of one crossarm on the east side of the pole and one on the west side of the pole, which were set into a notch, on each side of the pole, and held in place by a bolt which went all the way through the pole and cross-arms. There were also two braces from underneath each cross-arm to the side of the pole, and there were bolts through the ends of each set of cross-arms holding them together. The top cross-arms were about 6 feet 8 inches long, and the lower ones were about 3 feet shorter. Plaintiff was ordered to take the wires loose from the top cross-arms and take these cross-arms off the pole. There were three of these top wires which were called A C wires. They were copper wires which plaintiff described as being about the thickness of his little finger. Plaintiff was equipped with climbing spurs and a safety belt. The evidence indicates that this belt served the double purpose of allowing a lineman to use both hands in his work and of preventing him from falling. There was an old pole and a new higher pole about 50 feet east of pole No. 398. Frank Williams one of the linemen, was working on these poles. Plaintiff testified that when he climbed the pole he attached the safety belt around the pole above the top cross-arm, and, standing with his spurs in the pole, removed the A C wires. He then asked the foreman if he should tie up the wires and was instructed to let them swing. According to this testimony, this caused the wires to hang a foot or two south of the south end of the top cross-arms and about a foot below them. Plaintiff then removed his safety belt from around the pole, got down on the middle cross-arms, which were about 5 feet below the top ones, went out to the north end of them, fastened his safety belt around the top cross-arms, and unscrewed the nut of the bolt through these ends of the cross-arms with a wrench. Plaintiff then removed his safety belt from the cross-arms, went back to the pole and put his safety belt around the pole below the top crossarms and below the cross-arm braces, and, using his spurs to go on the pole above the middle arms, attempted to take the nut off of the bolt, through the pole, with the wrench. He found it rusted to the bolt and called for a chisel and hammer to chisel it off. While this was being obtained, he took a bolt out of the brace on that side of the pole and swung it out of the way so it did not interfere with his use of the chisel and hammer. After obtaining these tools, he chiseled the nut from the bolt. He then attempted to take the nut off the bolt which went through the south ends of the cross-arms with his wrench. He found that it was also rusted to the bolt and that he would have to chisel it. He then took his safety belt away from around the pole and started to attach it around the south part of the cross-arms. While standing on the middle cross-arms. While standing on the the top cross-arms with his right hand, he attempted to fasten the buckle of his safety belt with his left hand. At that moment he saw Williams' arm go up and one of the wires, which he had removed and which was hanging south of the pole, struck him in the face and knocked him from the pole. Plaintiff sustained serious injuries from the fall, the extent of which is hereinafter considered.
The evidence is conflicting as to the position of the wires and whether Williams was on the new pole or the old pole at the time plaintiff fell. There is evidence that the wires had not yet been moved to the higher poles; that the cross-arms on the higher pole had just been installed by Williams; that it was necessary, in order to move the wires in place on the higher poles, for Williams to take them in his hand and swing them out around the ends of the cross-arms and above them; and that when this was done it was usual for the lineman, who was about to swing the wires in this manner, to warn the linemen on the nearby poles that he was about to do so and have them take hold of the wires and help swing them up. Plaintiff's theory is that when Williams' arm went up he was on the new pole and was swinging the wires around the ends of the cross-arms to get them in place on the higher pole; that he did not warn plaintiff; and that in swinging the wires he caused one of them to strike plaintiff in the face and throw him off the pole.
There was evidence on the part of defendants that the wires had been lifted and fastened to the top of the new pole one at a time before the cross-arms had been put on; that they were never swung in the manner claimed by plaintiff, and did not strike him; and that Williams was not on the new pole at the time plaintiff fell and did not touch the wires. Plaintiff claimed that it was necessary, for him to do the work he was engaged in, to remove his belt from around the pole and attach it to the cross-arms, especially to use the hammer and chisel on the end bolt nut. Plaintiff had judgment for $ 30,000, and defendants have appealed. They say that it was entirely unnecessary to remove the safety belt from around the pole; that plaintiff could have let the belt out more, and, by doing so, would have been able to get in proper position to do the work safely; and that it was improper to remove it after having once attached it around the pole. Appellants contend that plaintiff was guilty of contributory negligence as a matter of law in removing the belt from around the pole, and that their demurrer to the evidence should have been sustained for that reason. Appellants also contend that it was error to give plaintiff's instruction No. 1, because they say there was no evidence whatever that plaintiff's fellow servant Williams caused the wires to move and strike plaintiff, or that plaintiff and his fellow servant were engaged in work directly in connection with the operation of a railway so as to make appellants liable for negligence of a fellow servant.
We do not think that the evidence shows that plaintiff was guilty of contributory negligence as a matter of law. Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509, 511; Gratiot v. Missouri Pacific Ry. Co., 116 Mo. 450, 21 S.W. 1094, 16 L. R. A. 189.
There is evidence here on the part of plaintiff from which it may be reasonably inferred that, to remove the nut rusted to the bolt through the ends of the top cross-arms, plaintiff, who was not a tall man, had to place his feet either against the pole or on the lower cross-arms and lean back with the weight of his body supported by the safety belt; that he had to employ both hands to use the hammer and chisel and had to be close enough to the nut to place the chisel against it and to hit it with the hammer with sufficient force to break the nut. If this is all true, then to fasten the belt around the pole and lean back in it, without being able to hold on to anything with his hands, might put plaintiff in a position where he could not reach the nut with the chisel or be able to hit it with sufficient force with the hammer. And if this is true, letting the belt out more, as appellants suggest, would only tend to swing him farther away from it; while to place the belt around the upper cross-arms, with the belt not fully let...
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