Markley v. Kansas City

• Decision Date: 08 July 1926
• Citation: 286 S.W. 125,221 Mo.App. 837
• Parties: ALBERT H. MARKLEY, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT. [*]
• Court: Kansas Court of Appeals

286 S.W. 125

221 Mo.App. 837

ALBERT H. MARKLEY, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

July 8, 1926

Appeal from the Circuit Court of Jackson County.--Hon. Thad B Landon, Judge.

AFFIRMED (conditionally).

Arthur W. Edwards and John F. Cell for respondent.

John T Barker and Marcy K. Brown, Jr. for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is a suit in damages for personal injury alleged to have been received through the negligence of defendant while plaintiff was in the employ of defendant as a common laborer.

The injury for which plaintiff seeks damages is alleged to have occurred on May 22, 1923, while plaintiff was working for defendant as a laborer on a drilling rig engaged in drilling certain holes in the terrain in the vicinity of Monroe street and the Missouri Pacific Railway Company's tracks in Kansas City, Mo., for the purpose of ascertaining the nature of the strata of earth to be passed through in tunnelling under the Missouri River preliminary to the construction of the new waterworks system for defendant city.

For use in drilling operations there was constructed a tripod about eighty feet in height consisting of three telegraph poles lashed together at the top and bolted. At this point there was attached a swivel, or pulley, through which a cable operated running direct to a windlass. The drill operated beneath this swivel or pulley, using a washing device operated by hydraulic pressure. The pulley and cable were used in raising and lowering the casing or pipe three inches in diameter used in the process. This casing was driven down by machinery. There was also a core pipe about one and one-half inches in diameter in the center of the outer casing. The driving of the casing is accomplished by use of a hammer in forcing it down. It appears that on top of this core pipe it is necessary to use an I-bolt screwed to the top valve, so that as the hammer worked up and down thereon by means of the rope cable which operated through the swivel, or pulley, above mentioned, the I-bolt furnished a means by which the hammer could be stayed. To make it more effective and easier to guide, a crowbar or pinch bar was inserted in the I-bolt, which served the purpose of raising or lowering the core pipe by attaching the cable thereto.

It appears there were two platforms built in the tripod by nailing 2 x 4's around the outside of the telegraph poles by which the same were constructed. One of these platforms was ten feet from the ground and the other twenty. Upon each platform were laid two loose planks about 10 x 12 feet in length which served as a landing when changing the pipes or hose, and in taking and putting on hose for washing. The crew operating the drill rig consisted of three men, viz., plaintiff, Morris Fennessey and Alfred Copeland, foreman. On the morning of the accident, Copeland and plaintiff were on the first platform and Copeland put the pinch bar through the I-bolt, plaintiff driving it in. It appears that Copeland then went down from the platform and started the engine which operated the rig while plaintiff remanded on the platform to watch the bar while the machinery was operating, to keep it from falling out, and to prop it whenever it worked loose. Copeland was not satisfied with the way the pipe was going and said to Markley, (plaintiff), "I am going to take that casing off before it is cross-threaded." The accident which followed shortly thereafter is thus described in plaintiff's testimony:

"'So Mr. Copeland came upon the platform again and taken ahold of the end of the bar while I drove it out. So he held the bar so when I drive it out it wouldn't fall down and hurt somebody. He taken the bar. I taken the hammer and drove it out. So when--he had the bar in his hand, I swung myself down on the windlass of the engine and stepped down on the engine and went down and got hold of the chain tongs and started work on there and the last I saw of Mr. Copeland he was on the--standing on this board with the bar in his hand trying to step over to the landing . . . . So I was down there working and someone came up behind me, I presumed it was Mr. Copeland because it sounded like his voice. He said--I never turned around--he said "Markley how is it coming?" I said, "It is coming easy now"--and all at once everything went dark to me and someone said, "Look out!" and everything went dark.'

"Just before we come down off of the platform, I drove the bar out and he (Copeland) had hold of the bar . . . he had hold of the bar in his hands, holding it up there. I don't know what was done with it or nothing.

"Q. How did he come down? A. I never seen him come down.

"Q. Now Mr. Markley, did you know what struck you on the head? A. No, sir, I didn't know at the time. I did not know until some of the boys, after I was--"

It appears that no part of the drill rig was in operation at the time of the accident. Plaintiff testified that in removing the pinch bar from the I-bolt, Copeland caught hold of the big end of the bar and plaintiff, with a hammer, drove it out of the I-bolt, at which time Copeland said to plaintiff: "Markley, get down and take this casing." Plaintiff did as directed and he and Fennessey set about the task of removing the upper section of the casing; that he, plaintiff, was taking it off with a wrench, and Fennessey was steadying the pipe. It appears that after the pinch bar had been removed from the I-bolt, it was left upon the platform, or on one of the planks thereof.

Frank Miller, a witness for plaintiff, stated he saw the accident and observed the circumstances just prior thereto; that he saw Copeland and plaintiff on the platform; that Copeland came down therefrom before plaintiff and that Copeland either brought the sledge hammer down or threw it down, and that plaintiff followed Copeland from the platform. Describing the manner in which plaintiff received his injury, witness stated:

"Mr. Markley and Mr. Fennessey, another worker working there, and Mr. Copeland and I standing about eight feet from where they were working unscrewing the pipe with a set of tongs and as they went to lift it, the top end of it leaned over and came in contact with this bar releasing that from the platform, and the small end of it started coming down, to fall, and I yelled to 'Look out,' and I made a grab for this bar, but I missed and the bar came down and struck Mr. Markley on the head.

"Q. And who was it had--who left the bar up there? Do you know who left it or how it was left there, the bar that rolled off and struck Mr. Markley? A. Mr. Markley left the bar up there. . . .

"Q. And it was being removed. And who was doing that? That is, who was engaged in the immediate work of lifting that pipe away? A. Mr. Markley and Mr. Fennessey."

This witness also testified that in removing the pinch bar Copeland wielded the hammer.

Morris Fennessey testified on behalf of defendant as follows:

"We were putting casing down and the casing, we did not get started the thread, the thread got cross-threaded and we had to get--two of them went up to break a chain. Mr. Copeland and Mr. Markley went up on the first scaffold, went up there and one of them--they had a bar and sledge at the time and they were taking it off or fixing it up, to get it fixed where we could use it, and they got through up there, Mr. Copeland came down first and Mr. Markley came down after him and we went to work again on this casing and this bar was up there, left up there on the scaffold, and we went to work and the end of this pipe hit the bar.

"Q. The upper end of the pipe? A. Yes, sir; the upper end of the pipe hit this bar and it fell down."

Alfred Copeland the foreman testified that he did not leave the pinch bar on the platform; that after he descended from the platform he did not notice that the pinch bar had been left there; that after plaintiff descended from the platform he and Fennessey were engaged in screwing on another pipe which was "cross-threaded or something," and then "when it came off the pipe kind of fell over and hit the boards up there and this bar fell down."

The testimony shows that when the bar fell it struck plaintiff on the head with terrific force and violence, producing serious dangerous and permanent injuries. The petition alleges that these injuries produced concussion of the brain, fracture of the bones of the head, neck and skull; that the tendons, ligaments, tissues and nerves were torn, strained, bruised and contused; also producing cerebral hemorrhage; all the muscles, tissues, ligaments, bony substances, cartilages and other organs and nerves of plaintiff's eyes and ears were badly torn, strained, sprained, bruised and contused, and that plaintiff's eyes and ears ceased to function normally; his eyesight and hearing have been greatly impaired and destroyed; that plaintiff's neck, spine and spinal column were twisted and injured; that plaintiff sustained numerous bruises all over the body and his intestinal organs were injured and misplaced; that thereby he loses and will continue to lose his natural rest and sleep; that he has dizzy and fainting spells, nausea and high temperature, and that plaintiff has suffered three or four strokes of paralysis in his side and limbs; that plaintiff has incurred and expended for surgical and medical attention the sum of $ 2000, and for hospital bills $ 500, and for drugs $ 200, and for nurse hire $ 500; that plaintiff has lost and will lose valuable time from his employment and his earning capacity has been lessened, impaired and almost destroyed; that all the said injuries are permanent, progressive and lasting in character. Judgment is asked in...