Appeal
from St. Charles Circuit Court.--Hon. R. D. Rodgers, Judge.
Action
for personal injuries. Appeal from order sustaining motion to
set aside verdict in plaintiff's favor and grant new
trial.
On
November 4, 1901, Anton Herbert, with three other ship
carpenters employed by defendant, was engaged in dismantling
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 fourth 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 process, 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 whilst said work was
being done, was old, weather-worn, 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 thereby 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 second 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 second 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 second
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 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 same was broken, as aforesaid, and defendant
avers that the injuries sustained by plaintiff's deceased
husband, Anton Herbert, heretofore, to-wit, on the fourth 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 costs 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 shipyard at the foot of Marceau street, in
the city of St. Louis, for the purpose of having her wheel
dismantled. The shaft of the wheel extended from one cylinder
timber to the other. These timbers were twenty or twenty-five
feet apart and extended about twelve feet from each side of
the stern of the boat. The wheel was fifteen or sixteen feet
in diameter and the stern of the boat was raised and blocked
up so as to clear the wheel and allow it to be revolved. The
supports of the scaffold, erected at the rear of the wheel,
were six timbers, called spalls, one at each end of the wheel
and one in the middle, and one about four or five feet to the
rear of each of the first three spalls. These timbers were
braced and cross-braced to each other, and a plank was nailed
to the outer two and to a timber, called a shore, which was
placed under each of the two cylinder timbers. Planks were
laid on this framework for the carpenters to stand on while
dismantling the wheel. A. J. Schlichtig was the boss of the
defendant's shipyard and had fifty or sixty ship
carpenters working under him at the time Herbert was injured.
The scaffold was erected by Herbert, the deceased, John
Schlichtig, Chris Zeller and Joseph Wagner, all of them
experienced ship carpenters and familiar with the work of
dismantling the wheel of a boat. The timbers and planks for
the erection of the scaffold were in the defendant's
shipyards and, so far as the evidence shows, were selected by
the workmen themselves.
A. J
Schlichtig, the boss, testified that he ordered these four
carpenters to erect the...
