Huskey v. Heine Safety Boiler Co.

• Decision Date: 30 January 1915
• Docket Number: No. 1360.,1360.
• Citation: 173 S.W. 16
• Parties: HUSKEY v. HEINE SAFETY BOILER CO.
• Court: Missouri Court of Appeals

173 S.W. 16

HUSKEY v. HEINE SAFETY BOILER CO.

No. 1360.

Springfield Court of Appeals. Missouri.

January 30, 1915.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Erastus Huskey against the Heine Safety Boiler Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sheppard, Green & Sheppard, of Poplar Bluff, for appellant. Abington & Phillips, of Poplar Bluff, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment for $3,000 on account of personal injuries received by him while in the employ of the defendant. The petition is here set forth as an aid in stating the facts of the case (formal parts omitted):

"Plaintiff states that the defendant is now, and was at all the times hereinafter mentioned, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and that on the 8th day of December, 1913, plaintiff was employed by the defendant in the capacity of sheet metal worker.

"Plaintiff, for his cause of action, states that on said 8th day of December, 1913, and while he was so employed by the defendant in the capacity aforesaid, said defendant was engaged in the city of Poplar Bluff, Missouri, in erecting and installing for the Missouri Public Utilities Company a metal smokestack, which said stack was of the height of about 152 feet, and of the diameter of about 6 feet, and the metal composing the same of the thickness of about one-fourth of an inch; that on the north side of said pipe and some 16 feet above the ground was a large opening of the height of 8 feet and of the width of about 6 feet, and which said opening had rivet or bolt holes entirely around the same, and which opening was intended as an entrance for the smoke that would thereafter be conveyed from an adjoining building by means of large pipes, which said pipes were to be fastened to said smokestack and held in place by means of large heavy contrivances called angle bars.

"Plaintiff further states that on said 8th day of December, 1913, said smokestack had been erected, and defendant was preparing to connect the large opening in the north side thereof by means of large piping to the adjacent building as aforesaid, and plaintiff states that to accomplish said purpose it was necessary to raise said angle bars from the ground by means of a block and tackle to the height of said opening; and the plaintiff states that to install said block and tackle, and perform said work and accomplish said results, that it was necessary for the defendant's servants and employés to work in and about said opening in said stack at said distance of 16 or more feet from the ground; and plaintiff states that for their safety it then and there became the duty of the defendant to furnish and maintain for them to work upon a circular platform on the inside of said stack at a point near the bottom of said large opening as aforesaid, said platform to rest upon certain lugs fastened on the inside of said stack for said purpose, and which said platform should have been furnished defendant's employés by it to stand upon while doing said work as aforesaid, but plaintiff states that the defendant carelessly and negligently, and in violation of its duty in that regard, failed and neglected to so erect, furnish, and maintain such platform at said place upon said lugs as aforesaid, or to take any other precaution to protect its employés from injury while working in and about the opening in said stack aforesaid.

"Plaintiff further states that on said December 8, 1913, defendant's foreman, with the intention of rigging up a block and tackle to hoist said angle bars up to said opening aforesaid, and well knowing that defendant had negligently and carelessly failed and neglected to furnish and maintain a platform near the bottom of said opening inside said stack, and well knowing the dangers attending an attempt to work in and about said opening without said platform being upon the inside of said stack at the place aforesaid, negligently and carelessly, and in violation of his duty in that behalf, and of the safety of plaintiff, carelessly and negligently ordered plaintiff into a place of danger, to wit, directed and ordered plaintiff to go to a position in said opening in said stack aforesaid, and to place in a bolt hole in the top of said opening a bolt upon which was to be fastened the block and tackle to draw up said angle bar as aforesaid; that to fasten said bolt at the place directed by defendant's foreman, owing to the negligence of defendant in failing to provide and maintain said circular platform on the inside of the stack as aforesaid, it was necessary, and which necessity was known to defendant's foreman, for plaintiff to stand with one foot on the thin metal forming the bottom of said opening, place the other foot on one of the lugs inside of the stack, and, reaching high above his head, place the bolt through the bolt hole aforesaid.

"And plaintiff states that in obedience to said order of his foreman and master, and without fault or negligence on his part, he attempted to place said bolt in said hole in the manner and by the means as aforesaid, and while standing on the bottom of said opening and said lug as aforesaid, and while attempting to place said bolt in said bolt hole for the purpose and in the manner aforesaid, and pursuant to the negligent and careless order of defendant's foreman aforesaid, and through no fault or negligence upon his part, plaintiff's feet slipped from said insecure and insufficient resting places as aforesaid, and as a result he was precipitated and fell to the ground on the inside of said stack, and thus and thereby, and as a direct result of defendant's negligence, plaintiff was permanently injured, wounded, crippled, weakened, bruised, lamed, and maimed in and about the right leg, ankle, and foot, to wit: The tibia and fibula bones of the lower leg and the bones of the ankle and foot were fractured and broken, and permanently lamed, crippled, injured, and disfigured," etc.; setting forth in detail plaintiff's alleged injuries and damages, and concluding with a prayer for a judgment against defendant in the sum of $7,500.

The defendant answered by a general denial, a plea of contributory negligence, and one of assumption of risk.

The evidence shows there were three ways that plaintiff could have gone up to the opening in the stack, which was about 16 feet from the ground — one by a runway, one by a ladder to the top of a roof which extended to within a foot of the opening and about on a level with it, and a third (which plaintiff took) by means of a block and tackle which hung from the top of the stack, about 150 feet. The ropes and pulleys hung on the south side of the stack. The opening to which plaintiff was sent was on the north side. He went up on the block and tackle by pulling himself up, aided by another workman at the direction of defendant's foreman. When he was high enough to be even with the opening, he swung himself around to the north side of the stack and stood with his feet on the edge of the stack which marked the bottom side of the opening. From the bottom of the opening, on which plaintiff stood, to the top thereof, in which was the hole he intended to put a bolt in, was about 8 feet. After he was up in the opening, the defendant's foreman saw him and threw him a bolt to place in one of the holes at the top. The...