Kirkpatrick v. St. Louis & S.F.R. Co.

• Decision Date: 17 March 1908
• Docket Number: 2,612.
• Citation: 159 F. 855
• Parties: KIRKPATRICK et al. v. ST. LOUIS & S.F.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

159 F. 855

KIRKPATRICK et al. v. ST. LOUIS & S.F.R. CO.

No. 2,612.

United States Court of Appeals, Eighth Circuit.

March 17, 1908

In an action against a master to recover for the death of a servant, an allegation in the answer that, if the deceased received the injuries alleged, the same were sustained as a direct result of his own negligence and want of care, and not of the negligence of defendant, is a sufficient pleading of the defense of contributory negligence, after verdict and judgment, where its sufficiency was not attacked by demurrer or motion.

This was an action by the next of kin of Sanford C. Kirkpatrick instituted in one of the courts of the state of Kansas to recover damages from the defendant railroad company for negligent acts committed in the state of Arkansas which resulted in his death. At the time in question Kirkpatrick was one of the crew engaged in the work of driving piles in the construction of a railroad bridge. The crew was using an apparatus constructed on a flat car, consisting of a small engine in the rear and two upright leads in front, between which operated a hammer of about 3,000 pounds weight. This hammer was drawn up by a rope passing over a pulley at the top of the leads and controlled by the engine. The work to be accomplished was to pick up one by one piles or logs of about 22 feet in length and 18 inches in diameter at the big end deposited before that time along the railroad right of way draw them up into a vertical position, make them fast between the leads, move the apparatus forward over the railroad track about 100 feet, and there drive them in the construction of a bridge. The operation of drawing the pile up from the side of the track into position in front of the leads was for one of the crew to draw the slack rope operating over a pulley at the top of the leads down to the ground beside the track fasten it about the end of the pile, and then by a reverse action of the engine haul it up to the required position. This was done by two men called 'leadsmen.' Their post of duty was at the foot of the leads, and their particular service was to guide the piles, when raised by the block and tackle, into position between the leads by the use of canting hooks or other convenient tools, and there to make them fast, ready for the drop of the hammer which was ultimately to drive them into position at the bridge. The crew worked under the general direction of a foreman by the name of Seivert. Kirkpatrick and one Van Zant were the two leadsmen.

The petition specified defendant's negligence to consist (1) in employing the rope with a hook at its end, instead of a chain and a hook at the end of the rope, to make the hitch about the end of a pile; (2) in causing the hammer to be raised to the top of the leads and the apparatus to be moved while a pile was hanging by the rope in front of the leads, thereby permitting the hammer, while rising, to rub against the rope encircling the pile and stripping it off over the end of the pile, so as to leave it without support and permit it to fall; (3) in not notching the pile where the rope encircled it, so as to permit the rope to sink into the body of the pile, and thereby prevent the hammer rubbing against it as it arose; (4) in not rolling or canting the pile to one side while the hammer was being raised, thereby preventing it from striking the rope as it passed up; (5) in not raising the hammer to the top of the leads before placing the pile between the leads, thereby to prevent collision between the encircling rope and the hammer as it was raised. As a result of these acts of negligence plaintiffs charge that a pile fell and killed Kirkpatrick while he was on the track in front of the advancing pile driver. The defendant denied the negligence charged, and pleaded assumption of risk and contributory negligence by the decedent. The case was tried to a jury, resulted in a verdict in favor of the defendant by direction of the court at the close of plaintiffs' case, and is now here on writ of error for review of the proceedings below.

W. P. Campbell (Kos Harris, Verne Harris, A. M. Sturdevant, and Lafe Sturdevant, on the brief), for plaintiffs in error.

H. C. Sluss and W. J. Orr (L. F. Parker and W. F. Evans, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge (after stating the case as above).

An act in force in Arkansas, where the casualty in question occurred, subjected the company to liability for the negligent acts of any of its employes resulting in injury or death to another employe. Thereby the fellow servant doctrine, which might otherwise have been applicable to some phases of this case, is rendered inapplicable. Sand. & H. Dig. Sec. 6248. For the purposes of this case, therefore, the acts of the foreman, if negligent, are imputable to the defendant itself. He was a vice principal.

In view of the proof it is doubtful if any negligence can be imputed to the defendant in either of the particulars specified in the petition. The evidence tends to show that the device employed was the one generally employed by others engaged in the same business, the method of operating it was one generally practiced by others, and that there was nothing unusual or uncustomary in the hitch of the pile, the elevation or operation of the hammer, or the movement of the apparatus; but, as the court is not unanimous in its opinion on this primary issue, we will not dwell upon it, but proceed to some other and decisive issues upon which we are in full accord.

The decedent, as alleged by plaintiffs and in substance proved by the evidence, was 27 years old, strong and able-bodied skillful, industrious, and temperate, of a good degree of intelligence, and with unimpaired senses of sight and hearing. He had worked for defendant in the performance of the same duties for 14 months before his death. The process of drawing up the pile, raising the hammer, and moving the machine forward was the same on the occasion in question as it had been during the 14 months of his past service. The heavy hammer had habitually been left at the bottom of the leads until the pile had been raised and action upon it had become necessary, in order to prevent an obvious overweighting of the top and probable upsetting of the machine. The rope and hook had been used interchangeably with the chain and hook for making the hitch, and during the last three weeks prior to the accident it had been used exclusively. The logs had never been notched for sinking the encircling rope or chain. The hammer had generally been drawn up after the piles had been elevated, and at a time when the rope or chain was liable to be stripped off by its ascent. Decedent had worked about this machine for a long time. He sharpened the end of the piles as they lay on the right of way for a while, but most of the time he was a leadsman. His post of duty and his duties brought him into immediate view of and contact with the operation of the machine. His post was on a footboard provided especially for leadsmen at the bottom of the leads and in front of the machine. His duties and those of his fellow leadsman were to handle the piles, take the end of the rope or chain suspended laxly from the pulley at the top of the leads out to the pile beside the track, hitch it to the big end of the pile, watch and guard the latter from contact with obstacles on its way up, ultimately place it between the leads, put the toggles or supports in...