Honeycutt v. Wabash R. Co.

• Decision Date: 04 June 1957
• Docket Number: No. 29695,29695
• Citation: 303 S.W.2d 153
• Parties: Roy HONEYCUTT (Plaintiff), Respondent, v. WABASH RAILROAD COMPANY, a Corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 153

303 S.W.2d 153

Roy HONEYCUTT (Plaintiff), Respondent, v. WABASH RAILROAD COMPANY, a Corporation (Defendant), Appellant.

No. 29695.

St. Louis Court of Appeals, Missouri.

June 4, 1957.

Rehearing Denied July 1, 1957.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 1, 1957.

Ely, Ely & Voorhees, Robert C. Ely, St. Louis, John L. Davidson, St. Louis, of counsel, for appellant.

Terry, Jones & Welton, Kansas City, Charles E. Gray, St. Louis, for respondent.

WOLFE, Commissioner.

This is an action by an employee of the defendant company to recover damages arising out of an injury that he sustained in the course of his employment. It was brought under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., and resulted in a verdict for the plaintiff in the sum of $11,500. A remittitur was ordered and the plaintiff did remit $7,000. From the resulting judgment for $4,500 the defendant prosecutes this appeal.

It was alleged in the plaintiff's petition that he had been employed for some time as a car man in the yards of the defendant. It was further alleged that on November 10, 1954, plaintiff was working underneath a car with a rivet gun, and that while moving about under the car the gun suddenly discharged a metal clip which struck the plaintiff, lacerating his forehead. It was averred that 'defendant negligently failed to furnish and provide plaintiff with a reasonably safe place to work and reasonably safe tools to work with in that defendant provided a rivet gun with an unprotected trigger when, in the exercise of ordinary care, defendant knew, or should have known, that in the use of said equipment in the performance of his duty, plaintiff was likely to be injured.'

The allegations of negligence were denied by the defendant's answer and the issues thus presented were tried upon the following evidence.

The plaintiff was a man thirty-five years of age and had worked in the defendant's car repair department for about seven years. During about four years of that time he had been using pneumatic rivet guns in the course of his work. There were two types of guns. The operational parts are enclosed in a cylinder about three inches in diameter. In the front end of this cylinder is a plunger which is a short cylindrical shaft. On the end of the plunger is a snap, the striking part of the tool, which hits the rivet. On the back end of the gun is a large grip, shaped like a pistol grip, and a trigger. Attached to the cylinder is an air hose, the other end of which is attached to an air compressor. The air pressure maintained is about ninety pounds.

When in operation the gun is held with the left hand grasping the cylinder and the right hand holding the grip. Thus holding the gun the snap is pressed against the end of a rivet and, by the trigger, compressed air from the hose connected to the gun is released into the mechanism which causes the plunger to vibrate and to pound the snap against the rivet. Upon releasing the trigger the gun stops. The two types of guns are alike in all respects except that the trigger on one is towards the top and on the outside of the grip. It is operated by pressing with the right thumb while the grip is held by the four fingers of the right hand. The other gun has the trigger between the cylinder and the grip and to activate the gun it is squeezed in the manner of a pistol trigger. Both guns will discharge the plunger and the snap into the air if the gun is triggered without holding the snap against a rivet or something to prevent it from flying out.

The plaintiff with a crew, consisting of himself and two others, was engaged in riveting plates on the bottom of a freight car which was jacked up so that he had a vertical space of about four feet in which to work. He sat on a nail keg during the operation and the plates that he riveted were about six inches or a foot above his head. The other two members of the crew were in the car above him. One of them heated the rivets and placed each heated rivet in a hole in the plates and frame. The other held a bucking pail against the head of the rivet and the plaintiff then applied the rivet gun from below to flatten the bottom head upon it.

The plaintiff testified that the day before he was injured he went to the office where the guns were kept and that there were two guns there. One had the trigger on the inside of the grip and the other had the trigger on the outside. He started to get the gun with the trigger on the inside and told the foreman that he preferred it, but he was directed to take the other gun. He worked that day with the gun having the outside trigger. The next day he had the same gun and after the crew had finished riveting one part of the car he prepared to move to another place. He was seated on the nail keg and preparing to move when he reached down and picked up the gun. It went off. The snap and plunger came out and struck the car. The snap glanced back and struck the plaintiff's forehead. He said that he wore at the time a canvas apron and that as he reached for the gun the trigger probably brushed against the apron and caused it to eject against the plunger and snap.

One of the crew, testifying on behalf of the plaintiff, said that he had used the gun in question and that it was 'kind of quick' and that he told the foreman it was 'trigger happy'. He said that according to his best recollection they had always had two rivet guns with the triggers on the inside before they received the gun in question.

Another workman testified by deposition that in working under a car there was a reasonable likelihood that a gun with the trigger on the outside would discharge the plunger and snap. This could only occur if the trigger was bumped against something or accidentally pushed. He said that you would not accidentally hit the trigger when it was located on the inside of the handle of the gun. He also stated that some time prior to the accident they had only guns with the inside triggers.

On behalf of the defendant the foreman testified that they had always had one of each type of guns and that the one with the trigger on the inside was out of repair at the time of the accident. He said that he had done riveting for many years and preferred the gun with the outside trigger as it afforded better control. This was by reason of the fact that one did not need to relax his hold on the grip to press the trigger as was the case with the inside trigger.

A manager for Ingersoll-Rand Company, which manufactured both guns, testified that both types were widely sold. It was a matter of preference. He said that the operator wore heavy gloves and that in picking up the guns with the inside trigger he was apt to take the trigger with the grip and cause it to accidentally discharge. Both guns sold for the same price and the one with the outside trigger was preferred by a ratio of about two to one.

The foregoing constituted the pertinent testimony as it related to liability and the case was presented to the jury upon the theory that the defendant could be found negligent if it furnished plaintiff with a...