Houston v. American Car & Foundry Co.

• Citation: 282 S.W. 170
• Decision Date: 02 March 1926
• Docket Number: No. 19188.,19188.
• Parties: HOUSTON v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

282 S.W. 170

HOUSTON v. AMERICAN CAR & FOUNDRY CO.

No. 19188.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Rehearing Denied April 6, 1926.

Appeal from St. Louis Circuit Court; 3. Hugo Grimm, Judge.

"Not to be officially published."

Action by Clarence Houston against the American Car & Foundry Company, a corporation, and others. From a judgment against defendant car company, it appeals. Affirmed.

Watts & Gentry and Arnot L. Sheppard, both of St. Louis (G. A. Orth, of New York City, of counsel), for appellant.

Mark D. Eagleton and E. J. Hullverson, both of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff on October 19, 1923, while engaged in assisting in the operation of an air-driven rivet gun. The suit was filed against the defendant American Car & Foundry Company and Ed. Green and J. C. Young, two employees of the defendant car company who were working with plaintiff at the time he received his injuries. A trial was had in the circuit court of the city of St. Louis, and plaintiff recovered judgment for $3,000, and from this judgment the defendant car company appeals.

There were seven assignments of negligence in the petition, but only four grounds of negligence were submitted to the jury. We will set out the assignments of negligence in the petition. It is alleged that defendant was negligent in the following particulars:

"(1) In negligently and carelessly ordering, directing, causing, suffering and permitting plaintiff to work under said box car and hidden from the view of the other defendants, when defendants knew, or by the exercise of ordinary care would have known, that should said rivet gun and punch be pulled the same would be likely to strike plaintiff and injure him.

"(2) That defendant American Car & Foundry Company negligently assured plaintiff that he could, with reasonable safety, work under said car and at said place and hidden from the view of his fellow workmen, when defendants knew, or by the exercise of ordinary care would have known, that said rivet gun was about to be pulled or jerked from its said place, and that plaintiff would be likely to be struck by said rivet gun and injured.

"(3) In negligently and carelessly failing and omitting to warn plaintiff that said rivet gun was about to be pulled from its position in said hole and under said car, when defendants knew, or by the exercise of ordinary care would have known, that plaintiff was in close proximity thereto, and that should said gun be pulled from its place aforesaid the same would be likely to strike plaintiff and injure him thereby.

"(4) That defendant American Car & Foundry Company negligently and carelessly failed and omitted to exercise ordinary care to adopt rules or signals whereby plaintiff would be advised of the intentions of his fellow workmen to jerk or pull said rivet gun from its place aforesaid, when defendant knew, or by the exercise of ordinary care would have known, that if plaintiff were advised of said intention of pulling said rivet gun he would be able to seek a place of safety and avoid injury.

"(5) That defendant American Car & Foundry Company was negligent and careless in failing and omitting to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, in that plaintiff was hidden from the view of the other workmen engaged in the operation of pulling said rivet gun from its place aforesaid, and that there were no signals whereby plaintiff would be advised of the intention of said workmen to pull said gun, and that plaintiff was required to work in a cramped position immediately adjacent to said gun, when defendant knew, or by the exercise of ordinary care would have known, that by reason of the things aforesaid plaintiff would be likely to be injured.

"(6) That defendants negligently and carelessly pulled said rivet gun from its place aforesaid, when plaintiff was in close proximity thereto, and while he was adjusting himself for the purpose of pulling said gun, without advising him of said intention so to do, when defendants knew, or by the exercise of ordinary care would have known, that in so doing plaintiff would be likely to be injured.

"(7) That defendant American Car & Foundry Company was negligent and careless in furnishing plaintiff with fellow workmen and employees who were negligent and careless and habitually negligent and careless, in that without warning plaintiff they were likely to pull said rivet gun, and did pull said rivet gun, from its place aforesaid, thereby injuring plaintiff."

Plaintiff had, for a number of years, been employed by the defendant American Car & Foundry Company (whom we will hereafter refer to as defendant) at different plants, and during the greater portion of his employment had worked with a rivet gun similar to the one he was using at the time he was injured. However, at the time he was injured, he had been working at this particular plant for only about ten days. He was employed by a man named Hynes, who took him to the track foreman, White, who in turn took him to another man called the "gang leader." This man put him to work with Green and Young, and told Young to take plaintiff and show him where to work, and what to do. This man also told plaintiff that Young would show him, and that Young was the leader of the bunch of men with whom he was to work; that he should go with Young, and "they" would show him what to do.

This gun was operated by air pressure, and was about four feet long, and five inches in diameter. At one end there was a nozzle with an opening, in which might be placed either a hammer to hammer down rivets, or a chisel to cut off the ends of such rivets. These three men were operating this air gun. Green was holding one handle, and Young the other, while plaintiff was operating or holding the nozzle end of the gun. They were working on a box car which was in the process of construction. Plaintiff was holding the chisel in the nozzle. The chisel became bound or caught, as would occasionally happen, and under such circumstances it became necessary to move the gun. One of the persons at the end of the gun where the handles were located would always touch the man at the other end as a warning that the gun was to be moved, so that he might get out of the way and protect himself. This warning was given by touching him with the foot, because there was so much noise that it was difficult to make him hear. The gun was moved without warning plaintiff, and he suffered this injury to his foot as the result thereof. He said he was given no warning, although Young had always given him the signals by touching him on the leg. The men would change places occasionally, or, as he stated, they would take "turn about." Plaintiff testified that this gun had been moved without warning by Green and Young before, and he had complained to the "gang leader" and his foreman about it. He was told that Green and Young would be reprimanded for their conduct. A physician testified that a callous was left on the foot about the size of the end of the thumb or index finger, which caused a feeling, similar to that which one would have if standing on a pebble, and that there would always be a lump there as a result of the fracture.

The court gave the following modified instruction for the plaintiff, which, owing to the attack made upon it, we will set out in full:

"The court instructs the jury that if you find and believe from the evidence that on or about the 19th day of October, 1923, the plaintiff was in the employ of the defendant American Car & Foundry Company, and that on the occasion in question, while engaged in the performance of his ordinary duties for said company, if you do so find, plaintiff was required to work at a place where plaintiff was hidden from the view of other workmen engaged in the operation of pulling a rivet gun from its place, and that while in said position, if you do so find, the plaintiff was in immediate danger of injury in the event said rivet gun was moved without the knowledge of the plaintiff, and that by reason thereof, if you do so find, plaintiff's place of...