Kirkpatrick v. Am. Creosoting Co.

• Decision Date: 16 February 1931
• Docket Number: No. 16758.,16758.
• Citation: 37 S.W.2d 996
• Parties: GEORGE R. KIRKPATRICK, RESPONDENT, v. AMERICAN CREOSOTING COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

37 S.W.2d 996

GEORGE R. KIRKPATRICK, RESPONDENT, v. AMERICAN CREOSOTING COMPANY, APPELLANT.

No. 16758.

Kansas City Court of Appeals. Missouri.

February 16, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Allan C. Southern, Judge.

AFFIRMED.

C.A. Randolph for respondent.

P.E. Reeder, Clif Langsdale, David R. Derge and Winger, Reeder, Barker, Gumbiner & Hazard for appellant.

BLAND, J.

This is an action for damages for personal injuries. There was a verdict and judgment in favor of the plaintiff and against the defendant, American Creosoting Company, hereinafter called the defendant, in the sum of $5,000. Defendant has appealed. The following parts of the opinion written by Commissioner BARNETT, upon the original submission of the cause, are adopted by the court:

"Appellant is a corporation with its place of business in Jackson County, Missouri. It operates a creosoting plant, and, among other things, treats railroad ties with creosote. On December 23, 1924, plaintiff was an employee of the creosoting company and on that day he was helping to propel a tramcar loaded with ties. There was a narrow gauge track in the yards of the creosoting company's plant upon which certain cars were propelled by man power and which were used to convey railroad ties to and from appellant's retort sylinder where the ties were treated with creosote. Ties were loaded on a flat car which was equipped with certain bands or bails. The bails looped above the car like the staves of a covered wagon and were fastened at the bottom to iron pieces fastened to the sides of the car. The bails held the load of ties in such shape that the car and the ties would pass in and out of the tube-like interior of the retort. When the bails or bands were fitted over the ties they were made secure by a pin which fastened the ends of the bail to the iron pieces attached to the sides of the flat car. The regular pin furnished for this purpose projected very slightly, if at all. The track upon which the tramcar ran passed near a small building which covered a fire hydrant. This building was near to the track that the side of a loaded tram car would pass within six or seven inches of the side of the building so that a man could not safely pass between the loaded car and the hydrant house. There were no positive rules concerning what position a man should take when helping to propel a car; but a loaded car was usually propelled by four men. They could all stand behind the car and push or two could push at the back end of the car and two others could go to the front and there take hold of the front bail and thus pull or push on the load. It was not unusual for the men to pursue the latter course. Whenever a man walked on that side of a load which was nearest the hydrant house it was customary, upon reaching the hydrant house, to let loose of the bail, walk around the building, and again take hold after the hydrant house was passed.

On the day in question a box car had been placed on a loading dock in the defendant's yards in such a position that it was necessary to propel loads of ties past the hydrant house in order to deliver them to the box car for loading. Plaintiff had hold of the front bail on the car and was walking on the side nearest the hydrant house. According to the testimony most favorable to the plaintiff he was pulling on the load, and a man who was pulling rather than pushing was not in a position to see the pin which secured the bail When he came to the place where it was necessary to let loose and walk around behind the hydrant house he started to step aside but his clothing was caught and he was pulled into the space between the loaded car and the hydrant house and was thus injured. He testified that after he was injured he looked to see what caught his clothing and that he noticed that a piece of an auger bit had been used instead of the regular pin. The auger bit extended about an inch and was the only thing that could have caught and held his clothing. He testified that he had seen pieces of auger bits used instead of the regular pins; that he had observed this about once a week before he was injured. Plaintiff was working under the directions of defendant's foreman, one Charles W. Trask. It was Trask who had caused the box car to be placed where it was, who had ordered the load of ties to be pulled or pushed past the hydrant house to the place where they could be unloaded into the box car, and who had ordered plaintiff to do the work that he was doing.

Plaintiff brought this suit against the creosoting company and Trask jointly and in his petition alleged that the defendants were negligent (1) in causing and permitting the box car to be placed in a position where it would be necessary for the plaintiff and other employees to propel the trams or cars past the hydrant house, when there was ample space where the box car could have been placed without making it necessary to propel the tram past the hydrant house; (2) that the creosoting company was negligent in maintaining the tram line and the fire hydrant shed in close and dangerous proximity to each other; (3) that the creosoting company was negligent in failing to equip the tramcar with handles or handholds for the employee to hold in propelling or stopping the hand car; (4) that the creosoting company was negligent in failing to equip the hand car with a brake whereby the car when loaded might be stopped with reasonable safety; (5) that the creosoting company was negligent in equipping and maintaining the tramcar in a dangerous, defective and unsafe condition, in that a metal pin was caused and permitted to project from the side thereof and be exposed without a guard or other protection which was likely to catch the clothing of plaintiff and other employees; (6) that the defendants were negligent in failing to warn the plaintiff that the pin projected or protruded for such a distance that it was likely to catch in plaintiff's clothing; (7) that the creosoting company was negligent in failing to discover and remedy the defective condition of the pin. At the close of the evidence each defendant offered an instruction in the nature of a general demurrer to the evidence and both rquests were overruled. Thereafter the defendants offered no withdrawal instructions wherein they asked the court to instruct the jury that any allegation of negligence was withdrawn from their consideration or that they must find for the defendants upon any allegation of negligence as a matter of law.

During the trial one of the attorneys for defendant offered in evidence a statement which had been signed by the plaintiff in which it was recited that at the time of plaintiff's injury he was pushing the car at the right front end. Having testified on direct examination that he was pulling the car, defendant's attorney on cross-examination asked plaintiff whether or not he had made the statement that he was pushing the car. Plaintiff denied that he had. There was quite a lengthy cross-examination during which the following occurred:

"A JUROR: What is the date of that?

"MR. LANGSDALE: There isn't any date on it. I don't know why.

"A JUROR: Who was that made to?

"MR. LANGSDALE: It was made to a representative of the defendant company.

"A JUROR: Was it made in order to get back to work?

"MR. LANGSDALE: No, sir, he was not working there.

"THE COURT: Gentlemen of the jury, the attorney cannot testify."

Defendant's attorney then asked six more questions concerning the manner in which the statement was made and taken, all of which were answered by the plaintiff, and another attorney for defendant then moved to discharge the jury for the reason that the juror had, by his remark, indicated that he was prejudiced and had already formed an opinion as to the statement without regarding the evidence in the case. The motion was overruled and exceptions taken. The jury returned a verdict for the plaintiff and against the defendant American Creosoting Company in the sum of $5,000, but in favor of the defendant Charles W. Trask. The creosoting company filed a motion for a new trial which, among other things, stated that the court erred in failing to discharge the jury on account of the juror who asked if the plaintiff's statement had been made in order to get back to work. Attached to the motion for new trial were two affidavits. Mr. P.E. Reeder, one of the attorneys for the creosoting company swore that Juror George A. Hackney, without warning, slid forward in his chair, and in an angry, belligerent, hostile and prejudicial manner, exclaimed: "Who was that made to?" referring to the plaintiff's signed statement; that "Clif Langsdale responded that it was made to a representative of the defendant company;" that thereupon said juror, in an even more violent, prejudiced, hostile and belligerent manner, exclaimed, — "Was it made in order to get back to work?" Mr. Reeder's affidavit also stated that the conduct and demeanor of said juror indicated clearly that he was, at the time, biased and prejudiced and had made up his mind in the case adverse to the creosoting company, and assumed, without any evidence to warrant such a presumption, and before the termination of the case, that the statement was obtained from the plaintiff by duress and pressure. The affidavit of David R. Derge, one of the attorneys for defendant creosoting company, was substantially to the same effect. The plaintiff filed the affidavits of all nine of the jurors who concurred in the verdict. All of these affidavits in substance stated that they regarded the questions of the juror as merely an honest inquiry to determine when the statement was signed, and when it later developed that it had not been signed in order for plaintiff to go back to work, affiant forgot all about the matter and did not think about it again until after the verdict when affiant was asked about the matter. Each affidavit stated that the questions were asked...