Harrison v. American Car & Foundry Co.

• Decision Date: 18 September 1923
• Docket Number: No. 27899.,27899.
• Parties: HARRISON v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

254 S.W. 559

HARRISON v. AMERICAN CAR & FOUNDRY CO.

No. 27899.

St. Louis Court of Appeals. Missouri.

September 18, 1923.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Russell Harrison against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Watts, Gentry & Lee and John E. Gillespie, all of St. Louis, for appellant.

Moldafsky & Tennenbaum, of St. Louis, for respondent.

SUTTON, C.

This is an action for the recovery of damages for personal injuries sustained by plaintiff while in the employ of defendant at its manufacturing plant in the city of St. Louis. The plaintiff and three other persons were working under the direction of the defendant's foreman. They had been directed by the foreman to unload a car of billets, and were, at the time of the injury complained of, engaged in preparing a place to rank the billets. It was required to prepare a foundation upon which to rank the billets when they were removed from the car. The place selected for this purpose was a space between two ranks of billets. These ranks of billets were something over 20 feet long, extending north and south, parallel with each other. The width of the space between these ranks of billets was variously estimated at from 4 to 8 feet. The billets which were to be ranked in this space were about 34 inches long, and it was required to place two railroad rails in the space; extending north and south, parallel with each other, as a foundation upon which to rank the billets. The rails used for this purpose were 20 feet in length, and weighed about 300 pounds each. One rail had already been placed in the space on the east side thereof near the east rank of billets, and the plaintiff and his three colaborers were carrying another rail into the space to complete the foundation for the billets. The plaintiff and one of his colaborers were at the north end of the rail, and the other two were at the south end. When the plaintiff and his colaborers had carried the rail into the space between the ranks of billets, the man assisting plaintiff at the north end of the rail shifted his position from the east side of the rail to the west side, and all the men handling the rail were then standing with their backs toward the west rank of billets and close to the same. Thereupon the foreman ordered them to drop the rail. In obedience to, this order they dropped the rail, throwing it from them towards the east to avoid being struck by the rail in its fall. The rail so dropped struck the rail lying on the ground, and rebounded and struck the plaintiff's foot, causing the injury for which, this action is brought. The cause was tried to a jury; there was a verdict in favor of the plaintiff, and the defendant appealed.

The court, at the instance of the plaintiff, gave to the jury the following instruction:

"The court instructs the jury, that if you find and believe from the evidence * * * that the plaintiff, together with other employees, was carrying the steel rail, and was directed by the defendant's agent, to drop the said rail, and in so doing the said rail struck another rail, which was lying on the ground, and if you further find and believe from the evidence that the defendant's agent was negligent in directing this plaintiff to drop the rail upon and against the rail herein mentioned in the evidence, lying on the ground, and if you further find and believe that the defendant's agent knew, or by the exercise of ordinary care could have...