Gaska v. American Car & Foundry Co.
| Decision Date | 22 October 1907 |
| Citation | 105 S.W. 3,127 Mo.App. 169 |
| Parties | GASKA et al., Appellants, v. AMERICAN CAR & FOUNDRY COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
J. Hugo Grimm for appellants.
(1) It was the duty of the defendant to protect its employees by the adoption and enforcement of a rule requiring the trussing crew to do their work only when the cars stood upon their trucks, instead of permitting them to do the work of trussing while the cars stood upon trusses. Eastwood v. Mining Co., 86 Hun 92; Gerrish v. Ice Co., 63 Conn 16; McIlligoll v. Randolph, 61 Conn. 157; Jones v. Railroad, 178 Mo. 545; Foster v. Railroad, 115 Mo. 179; Rutledge v. Railroad, 123 Mo. 126; Reagan v. Railroad, 93 Mo. 348; Schroeder v Railroad, 108 Mo. 322; Railroad v. Fox, 31 Kan 586; Abel v. Canal Co., 103 N.Y. 581; Bradley v. Railway, 138 Mo. 302; Mathis v. Stock Yards, 135 Mo. 461; Smith v. Baker, L. R. App. Cas. 353; Dayharsh v. Railroad, 103 Mo. 570; Devoe v. Railroad, 174 N.Y. 1; Nellis, Street Railroad Acc. Law, p. 425; Railroad v. Snyder, 68 L. R. A. 183; Doing v. Railroad, 151 N.Y. 582. (2) Respondent argues that plaintiffs cannot recover for the death of their son, because they are aliens. Our Supreme Court has held otherwise, as has also the federal court: Philpot v. Railroad, 85 Mo. 164; Vetelow v. Perkins, 101 F. 393; Mulhall v. Faller, 166 U.S. 132; Railroad v. Higgins, 85 Tenn. 620; Railroad v. Mills, 57 Kan. 687; Mayesville v. Marvin, 59 F. 91; Stewart v. Railroad, 168 U.S. 445.
Seddon & Holland for respondent.
(1) The court did not err in giving a peremptory instruction to the jury at the close of appellants' evidence for the following reasons: Because the appellants are non-resident aliens and cannot, therefore, maintain an action for the death of a person residing in Missouri. Endlich on Interpretation of Statutes, par. 176; Adams v. British Steamship Co., 2 Q. B. 430; Deni v. Railroad, 181 Pa. St. 525; McMillan v. Sawmill Co., 115 Wis. 332; Brannigan v. Union Gold Mining Co., 93 F. 164. (2) The court did not err in refusing to allow appellants to prove how many men were employed in respondent's plant, because there was no evidence that the employment in which appellants' son was engaged was complicated or dangerous.
--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-rod 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 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 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 appellants' 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 a thousand men, divided into different gangs having distinct duties, and that respondent had prescribed no rules which would make for the safety of employees during the performance by the different gangs of their respective duties; and particularly for the safety of employees 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: 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.
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