Kansas City Stockyards Co. of Maine v. Anderson

• Decision Date: 17 October 1952
• Docket Number: 14563.,No. 14561,14561
• Citation: 199 F.2d 91,36 ALR 2d 1
• Parties: KANSAS CITY STOCKYARDS CO. OF MAINE v. ANDERSON. ANDERSON v. KANSAS CITY STOCKYARDS CO. OF MAINE.
• Court: U.S. Court of Appeals — Eighth Circuit

36 ALR 2d 1, 199 F.2d 91 (1952)

KANSAS CITY STOCKYARDS CO. OF MAINE v. ANDERSON.

ANDERSON v. KANSAS CITY STOCKYARDS CO. OF MAINE.

Nos. 14561, 14563.

United States Court of Appeals Eighth Circuit.

October 17, 1952.

Roscoe C. Van Valkenburgh, Kansas City, Mo. (Bernard L. Balkin and Brenner, Van Valkenburgh & Wimmell, Kansas City, Mo., on the briefs), for Kansas City Stockyards Co. of Maine.

Harold T. Van Dyke, Kansas City, Mo. (Albert Thomson, Johnson, Davis, Thomson, Van Dyke & Fairchild, Kansas City, Mo., Karl V. Shawver, Jr., and Shawver & Shawver, Paola, Kan., on the brief), for Harry E. Anderson.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought by Harry E. Anderson against the Kansas City Stockyards Company to recover damages for personal injuries. The parties will be referred to as they were designated in the trial court.

Plaintiff was employed by defendant as a mechanic in its tractor shop at Kansas City, Missouri. While so employed on November 15, 1948, he received personal injuries for which he sought to recover damages in this action. In his complaint he alleged that on or about the 15th of November, 1948, he was employed in defendant's tractor shop and in the course of his employment was ordered to repair an Oliver tractor with an attached Lessman self-loader; that the frame of said tractor had been broken, bent and sprung and plaintiff was directed to place the broken frame in line so that the broken parts could be welded together; that the frame of the tractor and loader consisted of heavy steel bars, one of which had been broken, bent and sprung; that defendant directed and demanded that plaintiff prepare the broken parts for welding and directed plaintiff to perform said task alone and unassisted and with the tools at hand; that plaintiff undertook the task assigned to him and in so doing he was seriously injured; that the injury sustained by him was directly and proximately caused by the negligence of defendant in failing to furnish him reasonable and proper tools and a sufficient number of men to assist him in performing the work required to be done. Plaintiff also alleged that defendant was negligent in having failed to furnish him with a reasonably safe place in which to work and that his injury proximately resulted from alleged negligent acts of the defendant. Defendant by its answer put in issue all allegations as to its negligence by interposing an answer in the nature of a general denial, but admitted the allegations as to diversity of citizenship and the amount involved and also admitted that it had rejected the Workmen's Compensation Law of the State of Missouri, V.A.M.S. § 287.010 et seq.

The action was tried to the court without a jury and resulted in findings of fact in favor of plaintiff. The court entered judgment based on such findings in the amount of $2,000.00. In its findings of fact the court found: (1) that in the performance of his work plaintiff was required to do the same alone; (2) that two employees were necessary to the proper performance of the work; (3) that plaintiff requested an additional employee and was denied the additional help; (4) that in performing the work plaintiff was required to assume a position on the tractor which was unsteady and dangerous; and (5) that by reason of the position plaintiff was required to assume upon the tractor, and the condition of the tractor, the same was an unsafe place in which to require plaintiff to do the work. The court made other detailed findings and found specifically that the failure to provide plaintiff with an additional employee was negligence and that as a direct result of such negligence plaintiff was caused to be thrown from the tractor and injured.

It appeared from the evidence that on November 15, 1948, a small tractor owned by defendant and equipped with a Lessman loader, had been broken. In order to be repaired the broken parts had to be pried into place and a Mr. Hart, defendant's foreman, ordered plaintiff to prepare the loader for welding. Mr. Hart testified in this connection as follows:

"I told him to repair it because they needed it. They were in a rush for everything in the line of equipment down there. Anytime anything broke down they didn\'t have much replacement."

Hart told plaintiff they were in a hurry for the equipment and when he got the arm back in place for welding the witness was to call a welder. Hart also testified that he considered the job a two man job, maybe more. He testified:

"I knew what would be needed * * *. I don\'t know of any equipment you could use, only just enough men and bars to pry it up and back in place. One man couldn\'t possibly have done it. I knew enough about it to know that."

Plaintiff, knowing the job was a rush job and that the equipment was needed, tried to get the parts in place for the welder by himself. He jacked up the back part of the arm with the heavy weight on it so that it would stay as near as possible in place. He then went to the front of the equipment and tried to pry it into place using a crow bar. He then took the seat off the tractor so that he could get up above the broken arm, and attempted to pry the parts into place but his crow bar slipped and he fell, causing a hernia. There was evidence to the effect that if there had been two men to do the work one man could have pried from the rear and one from the front and both men could have stood on the ground to do the prying but when plaintiff did the prying alone it was necessary to get up on the tractor and to pry at the knuckle where there was grease. Other facts will be developed in the course of this opinion.

In seeking reversal defendant contends that: (1) there was no evidence that plaintiff was required to do the work alone; (2) that the trial court erred in finding that in performance of his work plaintiff was required to assume a position which was unsteady and dangerous and that defendant failed to furnish plaintiff with a reasonably safe place in which to work.

There is but little, if any, conflict in the primary facts. The contentions of the parties differ as to what inferences may be drawn from the evidence. The court having found the issues in favor of the plaintiff, we must take that view of the evidence most favorable to him and the court's findings can not be set aside unless clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. If there were conflicts in the evidence they have been resolved in favor of the plaintiff, and if the findings are sustained by substantial evidence considered in a light most favorable to plaintiff, then they should be sustained and the inferences to be drawn from the facts and circumstances are in the first instance at least to be drawn by the trial court and not by this court. The controlling issue, as we view the record, is whether there was evidence warranting the court in finding that the plaintiff was not furnished sufficient assistance. It was the duty of the...