Hayden v. Independent Gravel Co.

• Decision Date: 17 June 1916
• Docket Number: No. 1727.,1727.
• Citation: 186 S.W. 1193
• Parties: HAYDEN v. INDEPENDENT GRAVEL CO.
• Court: Missouri Court of Appeals

186 S.W. 1193

HAYDEN v. INDEPENDENT GRAVEL CO.

No. 1727.

Springfield Court of Appeals. Missouri.

June 17, 1916.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by W. M. Hayden against the Independent Gravel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. M. Sheppard, of Joplin, and J. P. McCammon, of St. Louis, for appellant. H. E. Thompson, of Webb City, for respondent.

ROBERTSON, P. J.

Plaintiff, a carpenter, was injured while assisting in the construction of a flume for loading gravel, which accumulates at a zinc concentrating plant, onto railroad cars. Plaintiff had worked as a carpenter about 12 or 14 years, and during that time had built scaffolds and done other work of that character.

The flume was supported by timbers, the two upright pieces of which planks 4 by 4 inches and the tops of the lowest ones 16 feet from the ground. They were about 12 feet apart at the ground. At or near the top they were placed about 18 inches apart, and a crosspiece, 2 by 6 inches, was nailed. About 2 feet below the top crosspiece another crosspiece, 2 by 12 inches, was nailed and one end extending beyond the upright a sufficient distance to hold a plank, 2 by 12 inches, which was placed thereon for a walk along the flume when completed. When the accident happened, four of these timbers had been constructed and erected by plaintiff and other employés of defendant. They were braced only by the flume bottom nailed on the top crosspiece and the footboard nailed on the next crosspiece below. There was a foreman in charge of the men. The fifth timber had been constructed, and plaintiff was ordered by the foreman to go upon the last erected one with another carpenter and assist by use of a rope in pulling this timber into position, aided by three or four men on the ground. While they were pulling, the entire portion of the already constructed flume collapsed, throwing plaintiff with and among the timbers and causing the injuries of which he complains. Another portion of the flume was being constructed at the same time as the portion to which we have been referring, but not connected therewith and is in no way involved. The portion that fell was started from and connected with a catch box 4 feet square and 4 feet deep into which the gravel runs when changing cars so as to prevent it running on the track. It stood on four perpendicular legs, and the bottom of it was about 2 feet above the ground. This fell with the remainder of the structure.

The plaintiff and his fellow carpenter constructed and erected the portion of the flume which fell and had at their disposal all of the material essential therefor. They did it in their own way and as their judgment dictated, so far as the record discloses as to the construction of the various parts. Before the accident occurred, the foreman was present and told plaintiff to go upon the set of timbers with another workman and pull the fifth set up. Plaintiff told the foreman that they ought to brace the timbers already up before undertaking to raise this one, to which the foreman replied that he thought it would stand to pull this set of timbers up, and that as soon as that was up they would brace it all solid, and for plaintiff to go on up. This testimony was disputed, but with that we have nothing to do. Along the timbers as were already erected, in order to make them secure, plank should have been nailed on each side, so the testimony tends to prove.

During the trial the plaintiff was asked if, when the foreman told him to go up onto the timber and he complained of the condition it was in, and the foreman told him to go ahead, he relied upon the foreman's order and judgment. To this the defendant objected as calling for a conclusion and being leading and suggestive. He was allowed to answer the question. This testimony should not have been admitted, so defendant contends, and cites Meyers v. O'Bear-Nestor Glass Co., 129 Mo. App. 556, 562, 107 S. W. 1044, and Knorpp v. Wagner, 195 Mo. 637, 664, 665, 93 S. W. 961. It was for the jury to determine, we concede, upon what plaintiff relied, and this conclusion must be reached by the jury upon the consideration of the facts; but after plaintiff had detailed the facts, to say the most of it, we do not see that any error was committed in admitting this testimony. The testimony of the plaintiff as to how he came to go upon the timber, knowing that it was not braced and being directed by the foreman to that place after plaintiff expressed his fear of its safety and the foreman telling him that he thought it would stand, if believed, would justify no other conclusion than that the plaintiff did rely upon the order and judgment of the foreman, so that the force of this testimony was not added to or taken from by what the plaintiff stated. We do not understand that the position of the defendant in this case was that, if the...