Lewis v. American Car & Foundry Co.

• Citation: 3 S.W.2d 282
• Court: Court of Appeal of Missouri (US)
• Decision Date: 06 March 1928
• Parties: LEWIS v. AMERICAN CAR & FOUNDRY CO.

3 S.W.2d 282

LEWIS v. AMERICAN CAR & FOUNDRY CO.

St. Louis Court of Appeals. Missouri.

March 6, 1928.

Rehearing Denied March 20, 1928.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Walter Lewis against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Arnot L. Sheppard and Watts & Gentry, all of St. Louis, for appellant.

Sarsfield A. Naughton, Robert A. Harris, and N. Murry Edwards, all of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered judgment for $2,700 against the defendant in an action for damages for personal injuries alleged to have been sustained whilst in its employ. Defendant appeals.

Plaintiff, a man 42 years old, was employed by defendant as a welder's helper at a wage of $4 per day. The welding at which plaintiff assisted was done on end sheets made of iron used in building railroad cars. These sheets are 9 feet long, 4 feet wide, and one-fourth to three-sixteenths of an inch thick. During the process of manufacture, the end pieces are corrugated, and occasionally a crack or defect results in the corrugations. The cracks or breaks, when not too large, can be welded. Such defective sheets as are intended for the process of welding are piled on a truck which has a floor or platform 4 or 5 feet wide and 6 feet long, and which is about 2½ or 3 feet above the ground. When a truck load of such sheets requiring welding accumulated, plaintiff and the welder whom he assisted would take the necessary tools and place them on the topmost sheet piled on the truck, and the welder would proceed to weld the defects in the top sheet. When that task was completed, it was necessary that the sheet be lifted, turned over, and permitted to fall to the ground so as to permit welding the other side thereof, and also to weld the next sheet in the pile on the truck. These end sheets frequently had three-quarters inch holes punched in them all around the edges, and at other times the sheets did not have such holes. The evidence discloses that the end sheets had holes punched in the edges more often than not. The defendant furnished a crane with chains and hooks for the purpose of lifting and turning the end sheets from the top of the pile off of the car onto the ground.

On the occasion when plaintiff met with his alleged injury, a truck load of end sheets, some 8 or 9 feet high, having no holes punched in the edges thereof, was delivered them for welding, and, according to plaintiff's testimony, when the sheets had no holes punched in them, it was not possible to use the crane to lift and turn the sheets over, but it was necessary to turn the sheets, after being welded, by hand. Each end sheet, according to plaintiff, weighed at least 600 pounds.

Plaintiff testified that the welder whom he assisted was known to him by the name of Pete, and that it was his duty to take orders from Pete and do as Pete directed him; that on this occasion, after Pete had welded the top sheet, he ordered him to pry up the east and west edges of the top sheet so that Pete could place a small block of wood under each end, thereby making space between the top and the next sheet for Pete and plaintiff to place their feet on the top of the second sheet in the pile, and by standing at opposite corners be enabled to place their hands underneath the top sheet, lift it up, turn it over, and drop it off of the top of the pile to the ground.

According to plaintiff, as the two men were in the process of lifting the north side of the sheet, plaintiff being at the east end, and Pete at the west end thereof, and when they had raised the sheet some 2 or 3 feet, Pete slipped and dropped his end of the sheet, causing plaintiff to lose his balance and immediately thereafter plaintiff's feet slipped out from the pile backwards, which caused plaintiff to fall, his groin striking the corner of the end sheets, resulting in a hernia.

Plaintiff further testified that, when they were first directed to weld the truck load of material, his welder foreman told one Smith, defendant's assistant superintendent, that the "stuff was too heavy for two men to turn over," and that he wanted some help, and that Smith answered he would send some help, but that a little later on Smith came out again and said to the welder foreman, "Go ahead and do that stuff." According to the plaintiff, after they had placed the blocks underneath the top sheet, Pete told him:

"`Go ahead and get on one corner and lift it.' * * * He said we would lift it up and turn it over so that we could get to weld the other side. * * * In doing this work ordinarily my welder foreman and I had to turn these sheets over, weld them on one side, and turn them over. At this particular time we had to turn them over by hand, had to get under them and lift them up and turn them over by main strength. If they didn't have holes in them, we had to lift them by hand, as we had no place to hook the crane on if the holes were not there; but, if they had holes in them, we turned them over by the crane and did not have to use our hands at all. Sometimes they came out there and didn't have holes in them. That would happen about one or twice a month. My welder foreman would make complaints to Leonard about the lack of holes. He would object to doing that stuff that way because he said it was too hard on us. The welder foreman told Leonard he didn't want to lift those sheets by hand because it was dangerous, and Leonard replied: `Well, I will see Mr. Smith, the assistant superintendent.' Smith was Leonard's superior. Leonard didn't give us any extra help for turning these sheets by hand.

"Q. Did anybody ever give you any extra help? A. Mr. Smith would send them out there and maybe leave them out there five minutes and then they would go on off. This extra help that Smith sent would help us turn them over, sometimes he sent out three or five men on a job of that kind."

In his cross-examination, plaintiff testified:

"I had helped weld these sheets before; did it two or three times a month. Once or twice a month these sheets would come out without any holes in them. They didn't come out without holes in them half the time. More of them had holes in them than didn't. They had holes in them oftener than they didn't have. I could not say just exactly how many times altogether I did this kind of work all the time I was down there, but maybe about once or twice a month, maybe a little oftener. I never took time to figure out how many times they came out with holes in them. * * * These other times when they came out there without any holes in them we got them off the truck the same way we did this time. * * * We pushed these sheets off by hand not so awful many times, but about a couple of times a month.

"Q. Who did it, you and Pete? A. Yes, sir. Sometimes he would send somebody to help us out, and they would stay there about five minutes and go away. We didn't get much help out of them because you could not take off very many in five minutes."

Plaintiff's own testimony was all that was offered on his behalf with reference to the manner in which the alleged injury occurred.

The defendant adduced testimony to the effect that the end sheets which had to be welded sometimes had holes punched around the edges and other times no holes were in them, depending upon the contracts from the railroads for whom they made the end sheets; that the sheets more often had the holes than not; that the sheets were not required to be turned by hand, in that the defendant furnished separate hooks and chains to be used with the power crane for turning the sheets, one character of hook for the sheets that had holes in them, and another kind for use on the sheets without holes.

Plaintiff went to the jury upon one instruction alone — that on the measure of damages.

Defendant's first...