Grindstaff v. Goldberg Structural Steel Co.

Decision Date24 June 1931
Docket NumberNo. 29332.,29332.
PartiesROBERT GRINDSTAFF v. J. GOLDBERG & SONS STRUCTURAL STEEL COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. Hon. Brown Harris. Judge.

REVERSED AND REMANDED.

Morrison, Nugent, Wylder & Berger for appellant.

(1) The trial court erred in overruling defendant's motion made at the time of the voir dire examination to discharge the jury panel because of the misconduct of plaintiff's counsel in unnecessarily and repeatedly referring to insurance and to T.H. Mastin & Company, and erred in not sustaining the defendant's motion for a new trial in connection with the same ground. Chambers v. Kennedy, 274 S.W. 726; Trent v. Printing Co., 141 Mo. App. 437; Pettit v. Sales Co., 221 Mo. App. 966; Gore v. Brockman, 138 Mo. App. 231. (2) The court erred in overruling the defendant's objection to the introduction of evidence, based upon the failure of the petition to state facts sufficient to constitute a cause of action. (a) The petition does not state a cause of action properly falling under the doctrine of res ipsa loquitur. Removich v. Construction Co., 264 Mo. 43; Goode v. Coal Co., 167 Mo. App. 175; Klebe v. Distilling Co., 207 Mo. 480; Pronnecke v. Pub. Co., 220 Mo. App. 640. (b) In its attempted allegation as to negligence upon the part of defendant, the petition states, not ultimate facts, but legal conclusions only. (3) The court erred in refusing to give the instructions asked by defendant, directing the jury to return a verdict in favor of the defendant. (a) The evidence adduced by plaintiff, constituting all of the evidence in the case upon the question of liability, failed to make out a cause of action against the defendant. The evidence failed to show actionable negligence upon the part of defendant, it being shown merely that the falling of the truss was caused by the breaking of the chain supporting it. Removich v. Construction Co., 264 Mo. 43; Klebe v. Distilling Co., 207 Mo. 480; Meade v. Water & Steam Supply Co., 318 Mo. 350; Blanton v. Dold, 109 Mo. 64; Scheurer v. Rubber Co., 227 Mo. 347; Eckhardt v. Elec. Mfg. Co., 235 S.W. 117; Myers v. Independence, 189 S.W. 816; Ash v. Printing Co., 199 S.W. 994; Sabol v. Cooperage Co., 313 Mo. 527; Hamilton v. Railroad, 123 Mo. App. 619; Oglesby v. Railroad, 177 Mo. 272; Fuchs v. St. Louis, 167 Mo. 620; Bohn v. Railroad, 106 Mo. 429; Beebe v. Transit Co., 206 Mo. 441; Howard v. Railroad, 173 Mo. 530; Wojtylak v. Coal Co., 188 Mo. 260; Copeland v. Railroad Co., 175 Mo. 650; Bowen v. Railroad, 95 Mo. 268. (b) The evidence failed to show the cause of the breaking of the chain, leaving it a matter of speculation purely. Removich v. Construction Co., 264 Mo. 43; Kramer v. Power & Light Co., 311 Mo. 369. (c) The undisputed evidence showed that the defendant provided a number of chains from which selection was made by the employee who was fastening up a truss or beam upon any given occasion. The evidence is wholly silent as to who selected the chain and put it around the truss upon the occasion in question. Under these circumstances, the negligence, if any, would be that of a fellow servant. Forbes v. Dunnavant, 198 Mo. 193; Modlagl v. Iron & Foundry Co., 248 Mo. 587. (d) If the breaking of the chain was caused by a defect therein (of which there is no evidence), it was incumbent upon plaintiff to show some notice or knowledge relative thereto, either actual or constructive, upon the part of defendant. Goode v. Coal Co., 167 Mo. App. 175; Wojtylak v. Coal Co., 188 Mo. 260. (e) Whatever the cause of the breaking of the chain may have been, the burden rested upon the plaintiff to show that such breaking was proximately caused by actionable negligence upon the part of defendant. (f) The plaintiff could not be aided by a presumption of actionable negligence upon the part of the defendant for the reason that this case is not one falling within the doctrine of res ipsa loquitur.

Atwood, Wickersham, Hill & Chilcott for respondent.

(1) Plaintiff had the right to inquire on voir dire examination of the jury of any possible interest they might have in any insurance company interested in the defense of the case. Melican v. Construction Co., 278 S.W. 366; Plannett v. McFall, 284 S.W. 853; Chambers v. Kennedy, 274 S.W. 726; Wagner v. Constr. Co., 220 S.W. 890; Kinney v. St. Ry. Co., 261 Mo. 97; Kelley v. Sinn, 277 S.W. 360; Saller v. Shoe Co., 130 Mo. App. 712; Meyer v. Mfg. Co., 67 Mo. App. 389; Jedlicka v. Shackelford, 270 S.W. 125; Willis v. Quarries Co., 268 S.W. 102; Garvey v. Ladd, 266 S.W. 727; Boten v. Ice Co., 180 Mo. App. 96; Yates v. House Wrecking Co., 195 S.W. 549. (2) The evidence conclusively showed plaintiff knew nothing about the operation of the crane in question, had no duty of inspection, repair or upkeep; did not have any control over any of the defendant's employees. He was rendered unconscious by reason of his injuries and had no opportunity to ascertain how or why the steel fell, nor had he any chance to obtain the names of witnesses of the accident. All the information as to how and why the steel fell was in the possession of defendant. Plaintiff's foreman was present in the court room when the case was being tried, but was not called by defendant. Under such circumstances plaintiff's evidence clearly entitled him to a submission of the case to the jury. Meade v. Supply Co., 300 S.W. 515; Eckhardt v. Elec. Mfg. Co., 235 S.W. 117; Daugherty v. Mining Co., 207 S.W. 253; Johnson v. Car & Fdy. Co., 259 S.W. 442; Ferguson v. Iron Works, 259 S.W. 811; Kitchen v. Mfg. Co., 20 S.W. (2d) 676; Taul v. Saddlery Co., 229 S.W. 420; Ash v. Ptg. Co., 199 S.W. 994; Prapuolenis v. Constr. Co., 279 Mo. 358; Thompson v. Ry. Co., 243 Mo. 336; Scheurer v. Rubber Co., 227 Mo. 347; Gibler v. Railroad Co., 148 Mo. App. 475; St. Clair v. Railroad Co., 122 Mo. App. 519; Sackewitz v. Mfg. Co., 78 Mo. App. 145; Bentley v. Car & Fdy. Co., 13 S.W. (2d) 562; Hauck v. Car & Fdy. Co., 14 S.W. (2d) 497; Svast v. White, 5 S.W. (2d) 668; State v. Allen, 289 S.W. 583; Miller v. Fire Clay Products Co., 282 S.W. 141; Daggett v. Car & Fdy. Co., 284 S.W. 855; Stroud v. Cold Storage Co., 285 S.W. 165; Smith v. Ry., Light. Heat & Power Co., 276 S.W. 607; Snyder v. Elec. Mfg. Co., 223 S.W. 911; Ware v. Northwestern Mach. Co., 273 S.W. 227; Wilson v. James, 271 S.W. 424.

RAGLAND. J.

This case comes to the writer on reassignment. It is an action by a servant for personal injuries alleged to have resulted from the master's negligence. Plaintiff had judgment below for $8,500; defendant appealed. The principal ground on which a reversal of the judgment is asked is the alleged insufficiency of the evidence to make a prima-facie case for plaintiff on the issue of negligence, the defendant having stood mute as to that issue. General negligence only was pleaded. The evidence offered to establish it will be briefly summarized.

Appellant operated a large plant in the manufacture of structural steel for building purposes. Respondent was in its employ as a common laborer. Five other persons were employed in similar capacities. The six, all of the same rank or grade, were subject to the orders of a foreman, one Beasley, and performed from time to time such miscellaneous tasks as he directed. Speaking generally, all six did the same character of work.

In the building which housed appellant's machinery and plant there was a traveling crane which moved east and west along tracks about twenty feet above the floor. The crane, to which a hoist was attached, was operated by an electric motor. The motor was started by pulling a rope which hung down a convenient distance from the floor. The motor was stopped by ceasing to pull the rope. The apparatus as a whole was used in moving heavy pieces of steel from one place to another. There was a hook on the hoist, to which the load to be lifted and moved was fastened by means of a chain. Appellant had furnished, and they were there at hand, a number of chains of different weights and sizes, all available for use. It was the duty of the workman directed to move a piece of steel to select a suitable chain and with it fasten the load to the hoist. The moving of steel, in the manner indicated, was on occasion done by respondent or some of the other common laborers, when ordered so to do by the foreman.

With respect to the manner in which he received the injury for which he sues, respondent testified:

"Q. Now, Mr. Grindstaff, did you have anything to do with the inspection or care of that crane? A. No, sir, not a bit on earth. Q. Did you have anything to do with making of repairs on it? A. No, sir. Q. Did you have charge of any of the employees there? A. None whatever. Q. Were you familiar, or did you have any knowledge of the manner in which this crane worked, outside of what you have described to us? A. No, sir. Q. Were you familiar with the construction of this crane? A. No, sir. Q. Now, what date was it you said you were injured? A. The 22nd day of October, 1925. Q. About what time in the day was it? A. I would judge it was something like nine o'clock. Q. Now, what time had you gone to work that morning? A. Eight o'clock. Q. And you said Mr. Beasley was your foreman? A. Yes, sir. Q. Did you have any conversation with Mr. Beasley right after you went to work? A. He told me to take some men and show them a place to clean iron and paint it, and as soon as I got through, to come back to him. Q. And what did you do? A. I took them down and showed them what to do, and then came back to him. Q. How long were you down there? A. About an hour. Q. What did he say when you came back? A. He told me to move that truss that was on there; that they were coming from the riveting room with another load; and he wanted it moved over where there were two more laying there. Q. How soon did he say to move it? A. He said to move it in a hurry. Q. Did you see the truss? A. Yes sir, I saw it hanging...

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