Funk v. Fulton Iron Works Co., No. 23980.

CourtMissouri Supreme Court
Writing for the CourtRagland
Citation277 S.W. 566
PartiesFUNK v. FULTON IRON WORKS CO.
Docket NumberNo. 23980.
Decision Date07 October 1925
277 S.W. 566
FUNK
v.
FULTON IRON WORKS CO.
No. 23980.
Supreme Court of Missouri, in Banc.
October 7, 1925.
Motion for Rehearing Overruled November 25, 1925.

[277 S.W. 567]

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Neil J. Funk against the Fulton Iron Works Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Holland, Rutledge & Lashly and Robert L. Ailworth, all of St. Louis, for appellant.

A. J. Haverstick, of St. Louis, for respondent.

RAGLAND, J.


This case was first heard and submitted in Division No. 1, following which an opinion was prepared. While that opinion failed of adoption, after the transfer of the case to banc, it sets forth the facts with admirable clearness and brevity. In stating the case, therefore, we adopt for the most part the statement of facts as contained in the divisional opinion, merely adding thereto such other evidentiary matters as in view of the conclusions finally reached are deemed pertinent

"The issues, such as they are, in this case can be fairly gathered from the following excerpts from, the pleadings, and a drawing found in respondent's brief, which for illustration we insert below.

"Defendant is a manufacturing corporation in St. Louis county, Mo. It manufactured and put together sugar cane mills and crushers, with other heavy iron products. In the petition the plaintiff says:

"`That the defendant's said manufacturing plant is equipped with numerous, ponderous and heavy machines; cranes and hoisting devices used in the manufacture of the aforesaid mills, crushers, and engines.

"`Plaintiff states that on the 10th day of December, 1920, and long prior thereto, he was in the employ of the defendant, and that on the said 10th day of December, 1920, he was engaged as a machinist, with an erection crew of men, in the erection of a large and ponderous sugar cane mill and crusher in the defendant's said plant, and under the orders and directions of the defendant's foreman in charge of said work.

"`That at the time hereinafter referred to plaintiff, with other mechanics in the employ of defendant, were engaged in placing in position and securing a large and heavy bent plate or apron of a sugar cane crusher mill.

"`That whilst the plaintiff was in the discharge of the duties of his employment and in the exercise of due care and caution for his own safety, and engaged at work under and beneath said heavy bent plate in order to bolt and secure the same in position, and whilst plaintiff was so engaged, defendant carelessly and negligently suffered and permitted a large and heavy iron ram to be thrown and fall upon plaintiff's left hand, crushing and bruising the tissue, bones, tendons, and other parts of all of the fingers of the plaintiff's left hand.

"`Plaintiff states that his said injuries and

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277 S.W. 568

loss is directly due and was, proximately caused by the negligent failure of the defendant company to provide and maintain plaintiff with a safe place of work, whilst he was under and beneath said large bent plate and engaged in bolting and securing the same in position, with his upward view obstructed, in that the defendant failed to prevent said heavy iron ram from falling upon plaintiff's left hand.'

"The answer is short, and reads thus:

"`Comes now the defendant in the above entitled cause, and, leave of court having been first had and obtained, files this, its amended answer to plaintiff's petition filed herein. And, for its amended answer, defendant admits that it is, and at the times referred to in plaintiff's petition was, a corporation duly organized according to law, engaged in the manufacturing business and operating a plant in the county of St. Louis, in the state of Missouri, and that, on the days referred to in plaintiff's petition, the plaintiff was employed as a servant of the defendant in said plant, and was engaged in the line of his duty in assisting in the erection of a certain machine, and that several other employ& of defendant were also engaged in said work at said time and place, and that whilst plaintiff was so engaged a piece of iron or steel fell upon plaintiff's hand and inflicted some injury upon him. And defendant denies all of the allegations in said petition contained.

"Further answering, this defendant says that whatever injuries were sustained by the plaintiff at said time and place were caused by his own negligence directly contributing thereto, in this, to wit, that, while plaintiff was engaged in working under a piece of machinery which completely obscured him from the view of other servants engaged in said work, he negligently dropped a nut from a bolt which he was inserting in said machinery, and thereupon negligently, and without giving any warning to the other men engaged in said work of his intention to come out from under said piece of machinery, and without exercising ordinary care to ascertain whether any object was falling or about to fall, which might fall upon his hand, the plaintiff negligently reached out to secure said nut at a place where he knew, or by, the exercise of ordinary care would have known, that at any moment falling objects were likely to fall upon his said hand and to inflict injury upon the same.

"`Wherefore, having fully answered, this defendant prays to be hence dismissed with its costs.' * * *

"Both parties have in their brief a drawing of the situation. They differ in that the one for defendant shows the lower end of the juice pan to be at or near the end of the bed plates, whilst the one for plaintiff shows to the contrary. Both give a fair view of the situation, and the difference, to our mind, is immaterial. The facts of this case are few and simple. McLord was the superintendent of the erection floor of defendant's plant during the third shift of the 24 hours. This was the floor where the parts were assembled and put together into the finished machine. Plaintiff, Funk, and one Bernhardt (a co-worker), were on the third shift, which began work at 11 p. They reported to McLord, and asked what they should do. McLord told them to put in this juice pan just as soon as they could get the crane. The crane was used to bring the heavy parts to the place where needed, and to keep them there until they could be firmly and finally fixed in the machine to which they belonged. The mind's eye must be kept upon the drawing. Plaintiff and Bernhardt got the crane, and the juice pan was moved so that it was over these bed plates, shown in the drawing. They concluded that the juice pan would have to be trimmed down before it could be fitted in between the two bed plates. In this situation, they spoke to McLord, who was some distance away (35 feet), and he came over to see what could be done. McLord took a position on one of the bed plates as shown in the diagram. Plaintiff stood beside him. He asked plaintiff to hand him an iron ram, which was 3 feet long, 3 inches in diameter, and about 65 pounds. Bernhardt had a similar ram. The juice pan was placed in position and under McLord's directions Bernhardt struck it a few blows with his ram as also did McLord. This process forced the juice pan into position, and plaintiff and Bernhardt were directed by McLord to bolt it in position, so the crane could be taken to other work. They had to stoop...

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16 practice notes
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • 30 Julio 1935
    ...S.W. 50; State ex rel. v. Ellison, 223 S.W. 673; Meily v. Railroad Co., 215 Mo. 597, 114 S.W. 1013; Funk v. Fulton Iron Works, 311 Mo. 77, 277 S.W. 566; Chenoweth v. Sutherland, 129 Mo. App. 438, 107 S.W. 6. (5) The refusal of defendant's instructions D and F was not error. (a) This point i......
  • Cain v. Humes-Deal Co., No. 29998.
    • United States
    • United States State Supreme Court of Missouri
    • 2 Abril 1932
    ...of the injury. Defendant is not liable for a negligent act of plaintiff's fellow servant. [Funk v. Fulton Iron Works Co., 31] Mo. 77, 277 S.W. 566; Bender v. Kroger Grocer & Baking Co., 310 Mo. 488, 276 S.W. 405; Hawk v. McLeod Lbr. Co., 166 Mo. 121, 65 S.W. 1022; 39 C.J. 537; sec. 644; 18 ......
  • Guthrie v. City of St. Charles, No. 36873.
    • United States
    • Missouri Supreme Court
    • 10 Junio 1941
    ...of his act or omission. Dean v. Railroad, 199 Mo. 386; Benton v. St. Louis, 248 Mo. 98; Funk v. Fulton Iron Works Co., 311 Mo. 77, 277 S.W. 566; Hamilton v. Standard Oil Co., 19 S.W. (2d) 679, 323 Mo. 531; Gray v. Kurn, 137 S.W. (2d) 558; Schneiter v. Chillicothe, 107 S.W. (2d) 112. (9) The......
  • Gray v. Kurn, No. 36130.
    • United States
    • United States State Supreme Court of Missouri
    • 6 Marzo 1940
    ...or omission. [Hamilton v. Standard Oil Co., 323 Mo. 531, 19 S.W. (2d) 679, 686.] In the case of Funk v. Fulton Iron Works Co., 311 Mo. 77, 277 S.W. 566, 570, the plaintiff was injured by a metal ram which defendant's superintendent tossed to the floor. It was held that the defendant was lia......
  • Request a trial to view additional results
16 cases
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • 30 Julio 1935
    ...S.W. 50; State ex rel. v. Ellison, 223 S.W. 673; Meily v. Railroad Co., 215 Mo. 597, 114 S.W. 1013; Funk v. Fulton Iron Works, 311 Mo. 77, 277 S.W. 566; Chenoweth v. Sutherland, 129 Mo. App. 438, 107 S.W. 6. (5) The refusal of defendant's instructions D and F was not error. (a) This point i......
  • Cain v. Humes-Deal Co., No. 29998.
    • United States
    • United States State Supreme Court of Missouri
    • 2 Abril 1932
    ...of the injury. Defendant is not liable for a negligent act of plaintiff's fellow servant. [Funk v. Fulton Iron Works Co., 31] Mo. 77, 277 S.W. 566; Bender v. Kroger Grocer & Baking Co., 310 Mo. 488, 276 S.W. 405; Hawk v. McLeod Lbr. Co., 166 Mo. 121, 65 S.W. 1022; 39 C.J. 537; sec. 644; 18 ......
  • Guthrie v. City of St. Charles, No. 36873.
    • United States
    • Missouri Supreme Court
    • 10 Junio 1941
    ...of his act or omission. Dean v. Railroad, 199 Mo. 386; Benton v. St. Louis, 248 Mo. 98; Funk v. Fulton Iron Works Co., 311 Mo. 77, 277 S.W. 566; Hamilton v. Standard Oil Co., 19 S.W. (2d) 679, 323 Mo. 531; Gray v. Kurn, 137 S.W. (2d) 558; Schneiter v. Chillicothe, 107 S.W. (2d) 112. (9) The......
  • Gray v. Kurn, No. 36130.
    • United States
    • United States State Supreme Court of Missouri
    • 6 Marzo 1940
    ...or omission. [Hamilton v. Standard Oil Co., 323 Mo. 531, 19 S.W. (2d) 679, 686.] In the case of Funk v. Fulton Iron Works Co., 311 Mo. 77, 277 S.W. 566, 570, the plaintiff was injured by a metal ram which defendant's superintendent tossed to the floor. It was held that the defendant was lia......
  • Request a trial to view additional results

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