Gaska v. American Car & Foundry Co.

• Decision Date: 22 October 1907
• Citation: 105 S.W. 3,127 Mo. App. 169
• Court: Missouri Court of Appeals
• Parties: GASKA et al. v. AMERICAN CAR & FOUNDRY CO.

105 S.W. 3

127 Mo. A. 169

GASKA et al. v. AMERICAN CAR & FOUNDRY CO.

St. Louis Court of Appeals. Missouri.

October 22, 1907.

Rehearing Denied November 5, 1907.

1. MASTER AND SERVANT — RULES — INFERENCE FROM EVIDENCE.

In an action for the death of defendant's servant caused by the falling of a car under which he was working while another gang of defendant's men engaged in tightening truss rods on cars were working on the car, from the evidence introduced that the only instruction the truss rods crew had was that, after they got through with one car, they should go to another and truss it, it is inferable that no rule was prescribed by defendant for the protection of the servant killed and his fellow workmen.

2. SAME — ACTIONS — ADMISSIBILITY OF EVIDENCE — DUTY TO MAKE RULES.

In an action for the death of an employé in defendant's car shop, killed by the falling of a car under which he was working with one crew of men while it was being jacked up by another crew engaged in tightening truss rods, a work distinct and separate from that performed by the men working under the car, evidence of the character, extent, and complexity of defendant's business, and of its failure to prescribe rules for its conduct was admissible on the issue as to

whether regulations were necessary, and whether reasonable ones had been made.

3. SAME — DELEGATION OF DUTY TO MAKE RULES.

The duty of a master to use ordinary care in regulating his business and prescribing proper rules for its conduct is a personal nondelegable duty.

4. SAME — WHEN RULES ARE REQUIRED.

An employer is only required to make rules and regulations for the conduct of his business to guard against dangers which he in the exercise of reasonable prudence could have anticipated.

5. SAME.

Where one set of men working under an employer are subject to danger in the performance of their tasks from the operations of another set of men, this danger must be reasonably anticipated by the employer, and minimized by the use of ordinary care in prescribing rules as to how the two gangs shall work; and it is negligence in the employer not to prescribe such rules.

6. DEATH — RIGHT OF ACTION — PERSONS ENTITLED TO SUE — NONRESIDENT ALIENS.

Under the statute giving a right of action to the next of kin of a person killed by the fault of another, parents of a person alleged to have been so killed, being his next of kin, may maintain an action for his death, though they are nonresident aliens.

Appeal from St. Louis Circuit Court; Daniel G. Fisher, Judge.

Action by Szyman Gaska and another against the American Car & Foundry Company to recover for the death of plaintiff's son. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J. Hugo Grimm, for appellants. Seddon & Holland, for respondent.

GOODE, J.

This was an action by appellants, as the parents of Joseph Gaska, to recover damages for his death, alleged to have been due to the negligence of respondent. The deceased had been in the employ of respondent but a short time prior to October 17, 1904, on which date he was the victim of an accident which caused his death. The respondent company conducts, in the southern part of the city of St. Louis, an establishment where railroad cars are repaired. Gaska belonged to a gang of three men whose duty it was to repair the draft timbers of cars. He was engaged in that work late in the afternoon of the date mentioned. A car had been brought into the factory for repairs, and the trucks removed from under it. To support it above the floor of the establishment, it was set on four trusses or benches, one at each corner. These trusses are described as having three legs, one longer than the others, and fitting in a square block or piece at the top. The deceased was under the car at work on the draft timbers near the south end. The rest of his gang were also engaged in similar work about the car, and one of them was under it, as well as himself. While those men were in that position, another gang of men employed in the factory, whose duty it was to tighten the truss rods of cars brought in to be repaired, came along and proceeded to tighten the truss rods of the car Gaska was under, not knowing he or any one else was under it, and not looking to see. As the car stood on the trusses or supports, the truss rods were compressed by the supports at each corner, and could not well be tightened. These truss rods are long iron rods running the length of the car, and intended to strengthen and support its middle timbers. In order to take the pressure off the truss rods the crew of men whose business it was to tighten the rods put a jackscrew under the car about the middle of it, and undertook with this appliance to raise the car off the trusses or supports which stood at the corners. They had raised it two notches on the screw, when suddenly the south end of the car fell to the floor, crushing Gaska under it, and injuring him so that he died. The testimony is that the jackscrew and one of the trusses at the south end penetrated the bottom of the car, and that one of the legs of the truss at the other south corner broke, thereby letting that end of the car onto the floor of the factory. The gang of men who tightened the truss rods in the factory had nothing to do with the work on the draft timbers of cars; that is to say, the gang of which Gaska was a member operated in a distinct sphere of duties from the truss rods crew. The latter gang would go about from one car to another to fasten the truss rods, and, when they were through with one car, would begin work on another. It seems they were under a foreman by the name of Hunter, and a subordinate foreman by the name of Sapo. The assignments of negligence are that respondent failed to furnish deceased a reasonably safe place to work, and reasonably safe machinery and appliances to work with, and furnished unsafe machinery and appliances for him to use; that respondent failed and neglected to adopt, promulgate, and enforce adequate rules for the management and conduct of the work done at its establishment, and particularly for the work of fastening truss rods on cars; that respondent failed to provide a sufficient number of foremen to direct the work; that the truss rods crew was composed of ignorant and unskilled men, and respondent failed to provide a foreman for them, or, if it provided a foreman, said foreman negligently failed to instruct the men concerning the manner in which their work should be done, and the cars jacked up with safety and without risk of dropping or overturning them; that respondent was negligent in permitting cars to be jacked up while they stood on trusses, instead of requiring that this be done while their trucks were under them. It was further averred that the floor of the factory was defective and gave way while the truss rods crew tried to jack up the car deceased was working under, and that the giving way of the floor caused the truss to slip and the car to fall; that one or more of the trusses (i. e., the benches on which the car rested and not its truss rods) was of insufficient strength and out of repair, and in consequence gave way. It was averred that the death of the appellant's son was the consequence of these acts and omissions of duty on the part of respondent. The answer was a general denial, a plea of contributory negligence on the part of the deceased, and that he assumed the risks from which he suffered as incident to his employment. The main facts were testified to substantially as we have stated them, and the trial court held them insufficient to take the case to the jury; wherefore a verdict for respondent was ordered and afterwards this appeal was taken.

Appellants complain of the exclusion of a mass of testimony offered by them for the purpose of proving respondent's factory was an extensive and complex establishment, employing about 1,000 men, divided into different gangs having distinct duties, and that respondent had prescribed no rules which would make for the safety of employés during the performance by the different gangs of their respective duties, and particularly for the safety of employés working in the position the deceased was when killed. Appellants' main theory is that respondent had been negligent in failing to prescribe and enforce rules for conducting its complex business which would minimize the hazard incurred by its workmen. The character of the ruling will be made plain by quoting the offer of the excluded testimony and what passed between court and counsel regarding it: "Mr. Grimm: I want to make myself clear before the court in this matter. I am offering the testimony to show the extent and complex character of the business of this company. The Court: I do not think that that would affect the charges in this petition. The issues that are joined here are very narrow. You complain that the deceased was put at work under a certain car which was placed on trusses; that one set of men came to jack it up while the other set of men were at work under the car. I do not see what bearing it has whether there were 500 or 10,000 men in the shops. Mr. Grimm: It is material whether there were men of different departments coming together and crossing each other in their work and working irrespective of each other's safety, without any rules or regulations. [We italicize.] The evidence will disclose that the man was at work at the end of the car; that a crew from another department altogether, with which he had no connection and with which he had no relation whatever, went to work and undertook to jack up the car with the men working under it, which was an unsafe and a dangerous thing to do with the man there. The Court: What difference does it make whether there were 1,000 or 10,000 men in that factory? Suppose the business is complex, here is a simple transaction as to one car; that is all you are complaining of. [Italics ours.] Mr. Grimm: It is only one car, but...