Harrell v. Atlas Portland Cement Co.

• Decision Date: 26 March 1918
• Docket Number: 4994.
• Parties: HARRELL v. ATLAS PORTLAND CEMENT CO. [a1]
• Court: U.S. Court of Appeals — Eighth Circuit

250 F. 83

HARRELL v. ATLAS PORTLAND CEMENT CO. ^[a1]

No. 4994.

United States Court of Appeals, Eighth Circuit.

March 26, 1918

John G Parkinson, of St. Joseph, Mo. (James W. Mytton, Allen May and Richard M. Duncan, all of St. Joseph, Mo., on the brief) for plaintiff in error.

George A. Mahan, of Hannibal, Mo. (A. R. Smith and Dulany Mahan both of Hannibal, Mo., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges.

SANBORN Circuit Judge.

Mr. Harrell sued the Atlas Portland Cement Company for damages that resulted, as he averred, from a personal injury inflicted upon him, as he alleged, by the negligence of its servants, and especially of its engineer, who was operating its steam shovel. The company answered that, if the plaintiff suffered any injury on account of the negligence of any of its servants, they were his fellow servants and the company was not liable therefor. At the close of the evidence for the plaintiff, the court directed the jury to return a verdict for the defendant on the ground that the plaintiff's injury appeared to have been caused by the negligence of his fellow servants. This is the ruling of which the plaintiff complains, and it was founded upon these facts: The cement company was, and for more than six years had been, a corporation engaged in the manufacturing plant sale of cement at Ilasco, Mo. It had a large manufacturing and there where it crushed rock, burned it, and made it into cement. About a mile from its manufacturing plant it had quarries from which it took the rock and transported it on cars over railroad tracks to its plant. It had the Hannibal Connecting Railway Company do all its railway work, such as loading the rock onto cars, pulling them away from the steam shovel, and turning the cars over to other men who took them over the railway tracks to the crusher and the mill. The quarry in which the plaintiff was injured contained a solid body of rock about 30 feet in height, and the rock used was separated from this solid body by dynamite and was then loaded into the cars by means of a steam shovel and crane operated by an engineer and men who were employed and paid by the cement company. The plaintiff was employed and paid by the Hannibal Connecting Railway Company. The solid rock or cliff of the quarry faced north. Two parallel railway tracks, near enough to each other to permit the shovel and crane to stand on a car upon one of them and load rock onto a car on another, extended north from the face of the cliff in the quarry. These tracks were moved by the cement company from time to time as the rock was removed, and there were other tracks in the quarry which were likewise used and moved when the work required. The plaintiff was the switchman of the crew consisting of an engineer, fireman, and this switchman, which was moving the empty cars in from the entrance to the quarry to the face of the cliff, taking the cars away when loaded, and turning them over to another crew which took them from the quarry to the plant. The cars were handled in this way. The shovel and crane were placed upon one of the two tracks so that the shovel would reach the rock which had been separated or loosened by the dynamite and was lying against the face of the cliff. Several empty cars in a train were backed in onto the track by the side of the shovel, and the rear car was placed where it could be loaded by the use of the shovel and crane. When that car was loaded, the cars were pulled out, the loaded car was set on the track back of the shovel, or elsewhere upon an empty track in the quarry, and the other cars were backed in, one of them was loaded, the cars were pulled out, and so on until four or five cars were loaded, when the crew put them into a train and pulled them out of the quarry and turned them over to the crew which took them to the plant.

The engineer of the steam shovel directed the plaintiff when and where the cars to be loaded should be placed, when a loaded car should be taken out, and when the cars, although not loaded, should be removed, and he also directed the operation of the steam shovel. The plaintiff controlled the movement of his crew and caused it to place each car to be loaded when and where the engineer directed him to place it and caused his crew to remove it when the engineer notified him it was loaded and whenever the engineer directed him to remove it. The plaintiff had been engaged in this same work for more than four years. Ordinarily when a car was to be loaded the engineer would direct the plaintiff where to place the car. He would place it. The engineer by the use of the shovel or dipper would seize a portion of the rock which had been loosened by the dynamite, swing the dipper over the car, and drop its contents into it. When the car was loaded, he would notify the plaintiff that it was ready for removal, and the plaintiff would cause his crew to pull it out. Sometimes the dipper would be used to rake or pull down large quantities of rock which rolled out to some distance from the face of the cliff. When the engineer was about to use the shovel for this purpose, if the cars were in near the cliff, it was his custom to direct the plaintiff to take them out of the way; if there was nothing in there but the men, he would tell the men to look out. If the plaintiff was near handling his crew or cars, he or one of his crew would notify him. At the time of the injury to the plaintiff, he had been notified that a car had been loaded, had caused his...