Kieth v. American Car & Foundry Co.

• Decision Date: 02 October 1928
• Docket Number: No. 20089.,20089.
• Parties: KIETH v. AMERICAN CAR & FOUNDRY CO. et al.
• Court: Missouri Court of Appeals

9 S.W.2d 644

KIETH v. AMERICAN CAR & FOUNDRY CO. et al.

No. 20089.

St. Louis Court of Appeals. Missouri.

October 2, 1928.

Rehearing Denied October 19, 1928.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by Thomas Kieth against the American Car & Foundry Company, a corporation, and another. From a judgment against named defendant, it appeals. Affirmed.

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

Foristel, Mudd, Blair & Habenicht and Harry S. Rooks, all of St. Louis, for respondent.

SUTTON, C.

This is an action for injuries sustained by plaintiff while in the employ of defendant, American Car & Foundry Company. Upon a trial to a jury, a verdict was rendered in favor of plaintiff against defendant, American Car & Foundry Company, for the sum of $7,500, and in favor of defendant, Claude Jordan. From the judgment against defendant, American Car & Foundry Company, entered on this verdict, said defendant has appealed to this court.

Plaintiff was injured on May 26, 1925, while working in appellant's car erection plant in the city of St. Louis. He had been working for appellant approximately three years at the time of his injury, and had done various kinds of work, including buffing on the machines, reaming, and fitting sides of cars. At the time of his injury he was engaged in fitting sides. By this operation the necessary component parts of the side of a metal box car are fitted together temporarily so that they can be riveted together permanently. The framework of the sides of these cars approximates the size of a freight car. The parts of one side of a freight car come to what is termed, in the evidence, a bench. Strictly speaking, it is not a bench, as it consists only of a framework upon which different parts of the side of a car are assembled. The men working at this table, or bench, receive the different parts of the car side, and bolt them together in proper position. When all the component parts have been bolted together, the car side then passes through what is known as a squeezer machine. This is, in reality, a riveting machine, which is used to drive the rivets through different parts of the car side, thereby fastening these parts together permanently.

The so-called table, upon which the fitting of the parts is done, is about forty feet long, and is upheld by carpenter's horses. About three feet to the east side of this assembling bench is a pit, which runs entirely across the shop, and which is about six and one-half feet deep and two and one-half or three feet wide. The pit is there for the purpose of permitting the car side to be moved up and down as it passes through the operation done by the squeezer machine. Plaintiff, on the occasion in question, was working between the pit and the east side of the bench. After the parts of the car side upon which he was working had been bolted together to hold them in position for the riveting operation at the squeezer machine, the entire side was lifted from the table by a crane and moved in the necessary directions while the parts were being riveted in passing through the squeezer machine. At the time of his injury, plaintiff, with others, was engaged in bolting together the component parts of a car side. Plaintiff was working on the east side of the bench between the bench and the pit. While plaintiff was thus engaged the car side which was being put through the squeezer machine swung over and struck plaintiff in the region of the back and hips, whereby he received the injuries for which he sues. The plaintiff and other workmen who were working at the bench and in the operation of the squeezer machine were working under the direction of appellant's foreman. As the car side was being put through the squeezer machine, it was held in place by a workman who was known as a tailer. As the car side passed through the machine, it became necessary for the tailer to change his position from the one end of the car side to the other. As he made this change there was nothing to prevent the car side from swinging over and striking the workmen at work at the bench. Plaintiff was struck while the tailer was making this change. On a number of previous occasions car sides being put through the squeezer machine had swung over to the place where the workmen were at work on the bench, but none of them had been previously struck or injured. No precautions whatever were taken by appellant to prevent the car side from thus swinging over and endangering the workmen at the bench while the tailer was changing his position from one end of the car side to the other. There was testimony for plaintiff showing that this could have been easily prevented by setting a stake at the west side of the pit. The appellant offered no testimony relative to the accident. No attempt was made on the part of the appellant to show any necessity or excuse for requiring plaintiff to work in such close proximity to the swinging car sides, or for its failure to adopt any precautions to protect him from the danger of being struck and injured by the car sides while at his work.

Error is assigned by appellant for the refusal of its instruction in the nature of a demurrer to the evidence. The sole ground for this assignment is that the petition fails to state facts sufficient to constitute a cause of action, but states merely a legal conclusion. The petition charges inter alia:

"That on or about the said 26th day of May, 1925, he was in the employ of said defendant, American Car & Foundry Company, in its said factory, in the City of St. Louis, Missouri, and while engaged in the due discharge of the duties of his services for said defendant, and while working at, near, and about said platform or bench at putting, placing, and fitting together said car sides, or frames, constructed of iron, steel, and heavy metal, as aforesaid, one of said car sides, or frames, then and there in the possession and under the control and management of the defendant, American Car & Foundry Company, and which said defendant was then and there lifting, carrying, and moving there in its said factory by means and by use of said device, commonly called a crane, was caused to suddenly hit, strike, collide, and come in contact with plaintiff, and to catch, crush, and mangle plaintiff there between said car side, or frame, and the said platform or bench, at, near, and about which plaintiff was engaged and working, as aforesaid, seriously and permanently injuring plaintiff, as hereinafter more fully described, all as a direct and proximate result of the joint and concurring negligence and carelessness of the defendant, American Car & Foundry Company, and the defendant, Claude Jordan, in the following respects, to wit:

"1. That defendant, American Car & Foundry Company, negligently and carelessly failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, in this, that plaintiff was required to work, and was engaged and working, at, near, and about said platform or bench, near and about which said place defendant was then and there operating said lifting, hoisting, and moving device, commonly called a crane, and with and by use of said crane carrying and moving said steel car sides or frames, as aforesaid, which said steel car sides or frames were likely to hit, strike, collide, and come in contact with persons, particularly plaintiff, engaged there in doing said work, as aforesaid, and injure him, while he was so engaged in doing said work, and said place was not reasonably safe for doing said work, and was dangerous, all of which said defendant knew, or by the exercise of ordinary care would have known.

"2. That defendant, American Car & Foundry Company, acting by and through its said foreman and vice-principal, the defendant Claude Jordan, and the defendant, Claude Jordan, negligently and carelessly ordered, directed, suffered, caused, permitted, and required plaintiff to be and work at said place when said defendants knew, or by the exercise of ordinary care would have known, that said steel car sides, or frames, as aforesaid, would be, or were, likely to be moved and carried about there in said factory, by means and by use of said crane, as aforesaid, and that the said sides or frames would be moved and carried near and about said platform or bench where plaintiff was required to work, and where he was engaged and working, as aforesaid, and that said sides or frames, being then and there so carried and moved, as aforesaid, were likely to hit, strike, and come in contact and collide with persons, particularly plaintiff, engaged and working at said bench, in doing said work, aforesaid, and injure him, while he was so engaged in doing said work, and that said place was not reasonably safe for doing said work, and was dangerous."

We are unable to see how this simple statement of ultimate facts could be regarded as a mere legal conclusion. There ought to be no doubt that the petition is good either as against a demurrer ore tenus interposed by way of objection to the introduction of testimony, which was the only method of attack made upon the petition in the court below, or as against a general demurrer made before the commencement of the trial. Rueter v. Terminal Railroad Ass'n (Mo. App.) 261 S. W. 713; Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482, loc. cit. 484; Kramer v. Kansas City Power & Light Co., 311 Mo. 369, loc. cit. 389, 279 S. W. 43; Mack v. St. Louis, K. C. & N. Ry. Co., 77 Mo. 232, loc. cit. 234; Bradley v. Becker, 296 Mo. 548, loc. cit. 552, 246 S. W. 561; McMath v. Holekamp Lumber Co. (Mo. App.) 259 S. W. 843; Koelling v. Union Fuel & Ice Co. (Mo. App.) 267 S. W. 34; Twigg v. Meyer (Mo. App.) 285 S. W. 120; Overby v. Mears Mining Co., 144 Mo. App. 363, 128 S. W. 813; Kern v. United Railways Co., 214 Mo. App. 232, loc. cit. 237, 259 S. W. 821; ...