Hayes v. Berry

• Decision Date: 06 April 1916
• Docket Number: No. 11716.,11716.
• Citation: 184 S.W. 913
• Parties: HAYES v. BERRY
• Court: Missouri Court of Appeals

184 S.W. 913

HAYES v. BERRY

No. 11716.

Kansas City Court of Appeals. Missouri.

April 6, 1916.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.

"Not to be officially published."

Action by James T. Hayes against Charles R. Berry, doing business as the Berry Iron & Steel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John E. Dolman, W. E. Stringfellow, and O. E. Shultz, all of St. Joseph, for appellant. Mytton & Parkinson, of St. Joseph, for respondent.

JOHNSON, J.

Plaintiff, a carpenter employed in an iron foundry defendant was operating in St. Joseph, was injured by the falling of the carriage of a traveling crane, and sued to recover damages on the ground that his injury was caused by negligence of defendant. The crane had just been erected in one of the buildings and was in process of final completion and adjustment when the injury occurred. It consisted of a track running north and south laid on two parallel lines of posts which were about 15 feet high and 15 feet apart, and a carriage suspended from two steel axles connecting the flanged wheels which were to move along the track. The axles were about 5 feet apart and ran parallel to each other. There were wheels designed to run crosswise on this framework to permit the block and tackle which carried the loads to be moved laterally as well as longitudinally. The main wheels which, as stated, were to run on the track, were fastened to their axles by set screws and the rails of the track, which were 8-inch I-beams, were fastened to the tops of the posts by lag screws. To prevent the track spreading and allowing the carriage to fall, it was necessary to brace the posts, and this was done by running braces from them to the solid timbers of the building; but plaintiff alleges, and his evidence tends to show, that these lateral braces were not installed until after his injury. He also alleges that the wheels had not been securely fastened to their axles by set screws at that time, but his specific charge of negligence is that defendant moved the carriage along the track without having braced its supports, and that the track spread and caused the carriage to fall. There is no averment of negligence in ordering plaintiff to work in a place which would be dangerous if the carriage were moved, nor of negligence in failing to warn plaintiff of the intended movement. Plaintiff had been working that day putting in lag screws to attach the rails to the posts, and after completing that task was ordered by the foreman to repair a flask for an iron column the molders intended to make that afternoon. The flask, a long, narrow, wooden box, was on the floor under the traveling crane near its east side.

The evidence of plaintiff does not tend to show that the order of the foreman precluded him from moving the flask from under the crane before proceeding with his work, and he states that he knew the track would spread if they tried to move the carriage along it, and that he was familiar with the conditions of the structure and of the state of the work of construction and adjustment. The carriage had been set on one end of the track, a chain and pulley had been attached to it, and the foreman and a workman were at work on the adjustments. Plaintiff testified:

"Q. Did you know where the crane was when you went to work there? A. Yes, sir. Q. Where was it? A. Right up over me. Q. When you went to work there? A. When I went to work putting this plate on. Q. How long did it stay there? A. Just a few minutes; I hadn't hardly had time to do anything. Q. Was anybody doing anything with the crane? A. There was a couple of men had hold of it and holding on the rope. Q. While you were working there? A. When I started to work. Q. What did they appear to be doing? A. Why, I didn't pay much attention to them."

It appears that the foreman proceeded to move the carriage to ascertain if it would pass under certain timbers of the roof. He, or the workman, or both, pulled on the chain or rope, and, as the carriage started to move, it suddenly fell from the track and injured plaintiff, who was underneath. Plaintiff states that no warning was given him of the contemplated movement, but that he heard the foreman shout: "Look out, boys! The damned thing is falling, ain't got no set screws in it." But this warning came too late for plaintiff to escape. Plaintiff is very positive that the absence of lateral braces caused the track to spread and the carriage to fall. We quote from his cross-examination:

"Q. You don't know whether the track spread or not? A. Sure did. Q. You know that? A. Positively know it. Q. How do you know it? A. My knowledge would prove to me the track spread. Q. How did you arrive at that conclusion — you didn't see it spread? A. I know that is the only way. Q. How do you know it spread? A. Just my knowledge teaches me that is the only way it could spread. * * * Q. You didn't see it spread? A. I didn't see it spread. Q. And you really don't know? A. No. Q. It is your opinion? A. Yes, it is my opinion; that is all."

A witness introduced by plaintiff testified to making an examination of the carriage after the injury, and on direct examination stated that he did not notice any set screws in the wheels, but on cross-examination said the wheels were still on the axles, and that he did not notice whether or not they were fastened by set screws. The evidence of defendant tends to show that the posts were braced, and therefore that the track did not spread, but does not attempt to explain the cause of the falling of the carriage. The jury returned a verdict for plaintiff for $6,000, and defendant appealed.

The principal argument of defendant goes to the sufficiency of the evidence to take the case to the jury. The answer, in addition to a general denial, pleaded assumed risk, contributory negligence, and negligence of fellow servants, and defendant insists that the evidence fails to sustain the pleaded charge that a failure to brace the posts was the proximate cause of the injury, and does show that plaintiff was guilty in law of contributory negligence in selecting an unsafe, instead of a safe, place, in which to work while repairing the flask.

Defendant owed plaintiff, his servant, the duty of exercising reasonable care to furnish him a reasonably safe place in which to work. This duty, of course, obtained during, and with respect to, the construction of the crane, and, while plaintiff assumed all risks of injury naturally resulting from the prosecution of that work, he did not assume risks created by the...