McCarney v. Bettendorf Axle Co.

• Citation: 156 Iowa 418,136 N.W. 920
• Parties: MCCARNEY v. BETTENDORF AXLE CO.
• Decision Date: 25 June 1912
• Court: United States State Supreme Court of Iowa

156 Iowa 418

136 N.W. 920

MCCARNEY

v.BETTENDORF AXLE CO.

Supreme Court of Iowa.

June 25, 1912.

Appeal from District Court, Scott County; D. V. Jackson, Judge.

Action for damages resulted in judgment against the defendant, from which it appeals. Affirmed.T. A. Murphy, Cook & Balluff, and A. G. Sampson, all of Davenport, for appellant.

Ely & Bush, of Davenport, for appellee.

LADD, J.

The only question raised on this appeal is whether the evidence was such as to justify the court in submitting the case to the jury on either of two grounds of negligence: (1) Was the defendant negligent in operating the crane without guards, fenders, or some device to give warning of its approach? (2) Was it negligent in operating said crane after the ordinary hours of work without notice to plaintiff that it would be so operated?

That the questions involved may be fully understood, it will be necessary to state the facts fully.

The defendant operates a factory for the manufacture of steel cars. To move these and other heavy material from place to place in its shop, it employs three electric cranes. These are hung on wheels which move on tracks which are different heights and extend north and south. They hang between the tracks with the top about even with the tops of the wheels, and the operator sits therein about six feet lower. The tracks for the large crane are 24 feet, those for the 3-ton crane 14 feet 3 inches, and those for the riveter crane 11 feet ______ inches above the floor, and all rest on posts or timbers attached to the main posts supporting the building. Starting from the south, the first or riveter post is a “box set in the ground and fits exactly a 9-inch I-beam, and on the beam is a two 6x6 bolt and imbedded in concrete, and the beam stands a foot below the angles. The south rail of the riveter crane track is supported on top of these I-beams.” The next or the post, of the large crane, is a 6-inch by 12-inch timber, 8 1/2 inches north of the riveter post and immediately against a 12-inch by 12-inch post supporting the building. About 9 inches from the top of the riveter post is a block between it and the large crane post. A bolt, running through the three posts mentioned, and this block, holds them together. North of the post supporting the building and 4 inches therefrom is a 6-inch by 8-inch post which supports what is called the “3-ton crane.” Between these posts and the tracks are I-beams, that on which the large crane moves being a 15-inch, on which the 3-ton crane runs a 12-inch, and on which the riveter crane is operated a 9-inch, I-beam. From the large crane post, and flush with its south side, are knee braces extending from a point on either side 3 feet 5 3/4 inches higher than the riveter crane track up to the track on which the large crane runs, giving it longitudinal stiffness. The south side of the large crane post is 8 1/2 inches north from the center of the riveter crane track. The 3-ton crane track is 2 feet 10 3/4 inches higher and 3 feet 5 1/2 inches north of the riveter crane track. A 1 1/4-inch iron air pipe extends parallel with and 7 3/4 inches north and 3/4 inch above the riveter crane track. It appears that, in operating one of these cranes, one employé sat in and directed it, while another followed on the floor fastening on whatever was to be moved, and when properly placed unfastening the same. In the morning of the day on which plaintiff was injured, he was directed by the shop foreman to follow the large crane, and did so until about 5 o'clock p. m.; it being operated in moving cars under frames to the riveter benches and then from there to the inspector's or painter's benches about 20 feet distant. At the time mentioned, the crane proceeded to straighten up some car under frames which had tipped over, when he was advised by the foreman that he would have to work till a quarter to 8 o'clock that evening. After some other work, by direction of the riveter, he attached to the crane the riveter crane which had been let down for repairs, and, when it was raised to the riveter crane tracks, he climbed up the south post to the south track, set the south wheels with flange in groove thereon, and proceeded to the north rail to set the other side.

He testified: “After I was halfway across, I looked down the north hole and saw this 60-foot crane standing about 100 feet away from me. There was nobody in the crane; nobody around it. When these cranes are being operated, some one has to be in the crane to operate it. After I saw this crane, I turned around to go over to the north girder of this small crane there. The wheels of this small crane were about 2 inches away from the rail. In order to get them in, I had to pull it like that; had to have both wheels straight. There was an 8-inch I-beam with a 4-inch flange to stand on there at that time. There was a rail in the center of this I-beam. In order to pull this wheel over into the groove, I had to take hold of something. There was not enough to stand on to hold me. The only thing that there was that I took hold of was this girder or rail of the north crane. That was the north crane I had seen standing there without anybody around it. I took hold of the edge of the rail of that north crane. Then I turned around and started to pull on this end and looked up to set this right. I could not hold onto the girder that I took hold of first. I could not hang onto the girder that this rail was on. There was not anything else there in my reach that I could hang onto except this rail on this north crane. Then, as I turned around, this crane passed over my hand. It did not make any noise; I didn't hear it until it went over me. It was about two minutes after I had seen this crane standing back there before it ran onto my hand.”

It appeared that the person operating the large crane did so on signals from plaintiff and was lifting the north wheels of the riveter crane when being pulled over, and that plaintiff could not well have pushed this crane instead of pulling it to the north in order to set the wheels on the track. The witness testified farther that he was not warned that the 3-ton crane would be moved that evening, and that he was not aware it would, but supposed the operator had quit for the day; that he did not know that it was not provided with a brush or fender in front of its wheels to remove everything from the track as the crane approached; and that had there been, and his hand had been removed thereby, he could have saved himself from falling by the use of his other hand. And quoting: “When I climbed up to this track, I was doing in the usual way the same work that I had been doing all day; that is, straightening out the object to be lowered by the crane and being ready to cast off the fastenings when the time came. I had to climb up in the work of following the crane. I had climbed up on top of these car underframes also about 10 minutes before they had tipped over. When the crane was doing work, it required somebody to climb up and get hold of what they were to lift and to cast off from it. I was the one to do that. So this Matthews was calling on me because I was the man whose place it was to do this work.”

Plaintiff was 20 years of age, but had worked at the Joliet Bridge & Iron Company heating rivets and where hand cranes on endless chains were used, after which he worked “firing a boiler” for a year. Then after a few months he was engaged by the Illinois Steel Company cutting bolts. For another company he bolted pieces to the cars, and his job was heating rivets which were carried where required by a hand crane, and later he helped fit, and then operated the air hammer which riveted the cars. He returned to the Illinois Steel Company for a time, where he seems to have merely carried oil for the engines. This company operated cranes like those of defendant, and he was shown how to do the work of following a crane by an employé of the latter before doing so alone.

Another witness, Greenwell, testified: “I know what appliances that are practicable are used in different establishments for the giving of warning of the approach of cranes generally. They are very different. Where a wheel is hung on a channel iron, if the channel iron extends beyond the wheel, there is usually a brush or broom intended for keeping anything off the rail. The distance in front of the wheel varies. Sometimes it is 6, 8, or 10 inches past the wheel; they are constructed so different. If the wheel was an 18 or 20 inch wheel, the brush would project about 15 to 18 inches. The effect of such a brush is that it would shove anything off the track. It is a practical device in general use. There is another construction where two fingers are bolted to the channel iron and extend out from 18 to 20 inches with that brush or sweeper. Mostly all cranes, or all firms that build cranes, they use a clamp so that, in case a wire was broke, or repairing the track, the track ain't safe to run on, they block a clamp right onto the rail so it will stop the crane there. That is to prevent it going any farther up than the block. Such a device as this is in general use for the purpose of stopping the crane if for any reason you did not want it to go any farther than a certain point. Such device is practicable for the protection of any one that is going upon the track of the crane, but they do not generally use it. There is no warning or signaling practicable and in general use as to the approach of a crane anywhere I know of except hollering, giving signals. In the large locomotive works, they use a whistle signal for handling the crane; that is, in giving warning of the approach of the crane.”

One Kay, who operated the 3-ton crane at the time of the injury, testified that he had done so for about three weeks; that the time in question was the only occasion when he was required to work over time; that at 5:45 o'clock he left the crane for the ground, but shortly...