Appeal from Circuit Court, St. Charles County; R. D. Rodgers, Judge.
Action by Elizabeth Herbert against the Wiggins Ferry Company. There was a verdict for plaintiff, and, from an order granting a new trial, plaintiff appeals. Affirmed.
A. R. Taylor and T. C. Bruere, for appellant. T. E. Ralston, A. C. Church, and T. F. McDearmon, for respondent.
Statement.
BLAND, P. J.
On November 4, 1901, Anton Herbert, with three other ship carpenters employed by defendant, was engaged in dismanteling the wheel of the steamer Julia, a stern-wheel boat belonging to the defendant. The part of the scaffold upon which Herbert was standing at work was caused to fall by a partial revolution of the wheel. Herbert went down with the scaffold, and was injured. The evidence tends to show that two of his ribs were broken near the backbone; that the ends of the broken ribs penetrated his lungs, and the wound caused traumatic pneumonia, of which he died on November 27, 1901. The plaintiff is the widow of Herbert, and, as such, sues to recover the damages she sustained on account of the death of her husband.
The material averments of the petition put in issue by the answer are as follows: "That while the plaintiff's husband, Anton Herbert, was in the due discharge of the duties of his employment, on a scaffold provided by the defendant for the purpose, at said place, said scaffold was caused to fall by the turning of a shaft with which it was connected, and plaintiff's husband was caused to fall and sustain injuries from which he died November 27, 1901, having been so injured on the 4th day of November, 1901; and the plaintiff avers that said injury and death of her husband was directly caused by the negligence of the defendant and its foreman and agent in charge of said work, in this: that the doing of said work with reasonable safety to plaintiff's husband required that, whilst said work of dismantling the wheel of said steamboat was being done, the pitmans attached to the shaft and crank should be detached, so as to prevent a strain upon said shaft and prevent the wheel from turning whilst said work was in progress, yet defendant and its said agent negligently caused said work to be done without detaching said pitmans, and thereby directly caused said injury and death of the plaintiff's husband; that whilst said work was being done, owing to said negligence of defendant and its said agent in failing to detach said pitmans, said shaft was caused so great a strain as to break the rope holding said wheel and cause said shaft to revolve, throwing down said scaffold, and causing the plaintiff's husband to fall and be injured as aforesaid. And the plaintiff further charges that the defendant and its said agent were negligent, in that the rope furnished by the defendant to hold said wheel in place while said work was being done was old, weatherworn, rotten, and too weak for said purpose, as defendant and its agent in charge of supplying suitable appliances for said work well knew, and, owing to said defective condition of said rope and its insufficiency for said use, it was caused to break and cause said wheel and shaft to revolve and cause the injury and death of plaintiff's husband as aforesaid. And plaintiff further charges that the defendant and its said agent were further negligent in that they failed to provide for the plaintiff's husband a place reasonably safe to do said work, and there
by directly contributed to cause the injury and death of the plaintiff's husband; that, by the death of her husband as aforesaid, the plaintiff has lost his care, maintenance, and support, to her damage in the sum of five thousand dollars, for which sum she prays judgment."
The answer set up the following defense: "And for the first and separate answer and defense to plaintiff's petition, defendant says that during the month of November, 1901, it was engaged in repairing steamboats in the city of St. Louis; that on the 2d day of November, 1901, it had on its marine ways for repairs the steamer Julia, afterwards and now called the Belle of Calhoun; that it was necessary to wreck or dismantle the wheel of said boat in order to put on new arms and buckets to said wheel, and that, in performing that operation, it was necessary to revolve said wheel from time to time; that at said time said wheel was at rest, and in perfectly safe condition for such work to be done with safety to the men who should do the same. And defendant avers that on said 2d day of November, 1901, it had in its employ four ship carpenters and fellow servants of long experience and skill in that art, to wit, plaintiff's deceased husband, Anton Herbert, Christopher or Chris Zeller, Joseph Wagner, and A. J. Schlichtig; that defendant then had on hand, and freely accessible for the use of said four ship carpenters and fellow servants, an ample supply of safe and sufficiently strong ropes, wheel irons, lumber, and appliances to have enabled said four ship carpenters to have wrecked the wheel of said steamer Julia, which they were directed to do by defendant's foreman in charge of said work on the 2d day of November, 1901, with entire safety to themselves. And defendant avers that it and its said foreman left the selection of the said ropes, tools, wheel irons, and lumber necessary for the wrecking of said wheel to the judgment and discretion of said four ship carpenters and fellow servants, and that, in the prosecution of said work, the rope which they selected to hold said wheel in position broke, and said wheel revolved about one-fourth of a revolution, thereby throwing down the scaffolding which they had erected, and upon which plaintiff's deceased husband, Anton Herbert, was standing; thereby fracturing two of his ribs, and otherwise injuring him. And this defendant further avers that said Anton Herbert and each of his said three fellow servants caused and directly contributed to said injuries of said Herbert, by carelessly and negligently selecting an old and water and weather worn rope of about one and one-quarter inches in diameter, which afterwards broke, to hold said wheel in place, when they might have freely selected a newer, larger, and sufficiently strong rope for that purpose, which would have held said wheel securely in place, and that they, and each of them, carelessly and negligently omitted to double the rope so selected by them, thereby adding to its strength and making it perfectly safe for the purposes for which they were using it; that plaintiff's deceased husband, Anton Herbert, and said A. J. Schlichtig caused and directly contributed to the said injuries of said Herbert by carelessly and negligently subjecting said rope, with which they had lashed said wheel in place, to an unnecessary strain, whereby it was broken, by removing all the packing from the cylinder and piston rod to which the pitman attached to the crank of said wheel was attached, and that plaintiff's deceased husband, Anton Herbert, and each of his said fellow servants, caused and directly contributed to the said injuries of the said Anton Herbert, in this: that they so carelessly and negligently conducted the operation of wrecking said wheel that the scaffolding or platform adjoining said wheel, and upon which they stood from time to time, was thrown down, and said Anton Herbert injured as aforesaid, by the one-fourth revolution of said wheel when the rope holding the same was broken as aforesaid; and defendant avers that the injuries sustained by plaintiff's deceased husband, Anton Herbert, heretofore, to wit, on the 4th day of November, 1901, were caused and sustained by the careless and negligent acts aforesaid, and not otherwise; and that plaintiff's deceased husband, Anton Herbert, did not die of said injuries so sustained by him as aforesaid; and that this action is brought to recover damages for such injuries so sustained by said Anton Herbert as aforesaid. And having fully answered, defendant prays the court to be hence discharged, with its cost in this behalf expended."
The reply was a general denial of the new matter in the answer.
The evidence shows that the Julia had been drawn out of the water and raised on the marine ways of the defendant's...
