McDill v. Terminal R. R. Ass'n of St. Louis, 43880

• Decision Date: 12 April 1954
• Docket Number: No. 2,No. 43880,43880,2
• Citation: 268 S.W.2d 823
• Parties: McDILL v. TERMINAL R. R. ASS'N OF ST. LOUIS
• Court: Missouri Supreme Court

Page 823

268 S.W.2d 823

McDILL v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 43880.

Supreme Court of Missouri, Division No. 2.

April 12, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 14, 1954.

Warner Fuller, Arnot L. Sheppard and John P. Montrey, St. Louis, for appellant.

William H. Dahman, Tenney & Dahman, St. Louis, and Robert L. Smith, Clayton, for respondent.

BOHLING, Commissioner.

The Terminal Railroad Association of St. Louis, a corporation, appeals from a $10,000 judgment in favor of Thomas A McDill for injuries sustained in the performance of his work for defendant. Plaintiff, in separate instructions, submitted actionable negligence on defendant's part in permitting the use of an anvil or slab, the top edge of which had become rounded, for the performance of plaintiff's work; and in allowing the floor to remain uneven and sloping in front of the press at which plaintiff was working. Defendant claims the evidence did not make a case on either theory; that one of plaintiff's instructions was erroneous; that incompetent evidence was admitted; and that the verdict is excessive.

Plaintiff, a boilermaker of many years experience, worked at defendant's Brooklyn shop, near East St. Louis, Illinois. On September 5, 1951, plaintiff and his helper, William E. Martin, were flattening a sheet iron side riser of a diesel step assembly, which plaintiff described as being somewhat rectangular in shape, 28 inches by 41 inches, except one corner was cut off diagonally, and 1/2 inch thick, weighing approximately 100 pounds.

The only equipment available for this work was an 11 foot 9 inch pneumatic clamp or press, which faces to the south. It has two jaws, 7 inches wide. The upper jaw moves up and down under air pressure and is controlled by a lever. The lower jaw is immovable, and rests on a concrete base, which extends about 4 or 4 1/2 inches to the south of the lower jaw at the floor level. The lower jaw is 20 1/4 inches high.

A movable iron anvil or slab, having a straight edge on the south, rests by gravity on the lower jaw of the press. The anvil is 3 3/4 inches thick, 64 or 65 inches long, and 12 inches wide at its narrow end and at its other end is semicircular, a reverse curve, being about 21 inches wide. The top of the anvil is about 24 inches above the floor level and, when in use the semicircular portion on the north rests upon a sawhorse, shimmed up to balance the anvil. The opening between the anvil and the upper jaw when up is about 9 inches. A swinging 'jib' crane is used to move the anvil, but the workmen strike it with a sledge hammer if it is to be shifted a short distance.

When in use, the anvil is positioned to extend about 3 1/2 inches beyond the south edge of the jaws of the clamps. In connection with the operation of the press, the boilermaker uses a flatter and has his helper strike it with a sledge hammer to flatten the sheet iron. It is usually necessary to turn the metal sheet over and work on both sides of it.

Plaintiff testified that the anvil had been in use for 30 years that he knew of; that originally its straight edge, or the side facing south, presented a squared edge; that the hammering on it over the years caused the upper edge to be rounded off for about an inch or so back, inexperienced helpers frequently striking the edge of the anvil with sledge hammers.

The floor in front of the press is loose dirt. Mr. Coggins, defendant's foreman and witness, testified that the men working in front of the press twist and turn; that their feet work the dirt away, and whenever it became bad it was leveled up. Plaintiff testified that on the occasion in question the floor was 'pretty well scratched out.' 'eat out' there and, indicating, 'if you were putting your foot up there like that it would make you stand on your heel.' Plaintiff's helper Martin estimated the slope extended from the concrete base for 4 inches to the south. Photographs of the floor and press corroborate the evidence favorable to plaintiff.

Plaintiff was turning the sheet iron over when injured. The press had been released. He stepped back, pulling the sheet iron southwardly, toward him, and stood it up on its edge on the anvil, resting it against his body or chest as he changed his handholds, and when he took a step forward, he stubbed his toe on the concrete and it threw him against the sheet iron, skidded it off of the anvil, and, although he tried to get his feet out of the way, he was hindered in doing so and was not fast enough. The sheet iron fell on his right great toe. A portion of the toe was amputated. He testified: 'If that had been a square edge on there, it wouldn't have slipped.'

Defendant contends there is no evidence of actionable negligence with respect to the top of the anvil having become rounded; stating that the anvil was reasonably safe for the purpose for which it was intended and plaintiff, in using the edge of the anvil as a resting place for the heavy metal sheet in turning it over, was making an improper or unintended use of the anvil, stressing 56 C.J.S., Master and Servant, Sec. 251, notes 69-71, p. 1005; Wilson v. Missouri Pac. R. Co., 319 Mo. 308, 5 S.W.2d 19, 22; Graham v. Chicago St. P., M. & O. R. Co., C.C., 62 F. 896; Manche v. St. Louis Basket & Box Co., Mo.Sup., 262 S.W. 1021, 1022; York v. Kansas City, C. C. & S. Ry. Co., 117 Mo. 405, 411(I), 22 S.W. 1081, 1082(1); Kelley v. Lawrence, 195 Mo. 75, 92 S.W. 1158, 1161; Campbell v. Southern Pac. Co., 120 Or. 122, 250 P. 622, 624; St. Louis-San Francisco R. Co. v. Rogers, 172 Ark. 508, 290 S.W. 74, 76[2, 5].

Defendant also says that the use plaintiff made of the anvil was not a customary or frequent use, and defendant was not under a duty to make the anvil safe for such use. 3 Labatt, Master and Servant, 2d Ed., Sec. 923; 56 C.J.S., Master and Servant, Sec. 251, notes 72-75, p. 1006.

There was substantial evidence that in properly flattening the piece of sheet iron plaintiff would be required to turn it over, and that the top south edge of the anvil was not square but had become rounded. Foreman Coggins testified how the sheet iron might be turned over and the workman stand back from the clamp to avoid injury if it fell, stating plaintiff's method was not workmanlike; but, as we read his testimony, boilermakers turned the metal sheets over as plaintiff did although as a rule it was not done that way.

Plaintiff testified that he had flattened like sheets before; that his method of flattening the sheet iron was not his idea; that all of defendant's boilermakers used practically the same procedure, it might vary a little; that one might turn it one way and another the other way; and that everyone flattened iron sheets practically the same way. Plaintiff's helper testified that he noticed nothing unusual in the way plaintiff was proceeding. Plaintiff also had testimony that plaintiff's procedure was safer than the method described by defendant's foreman.

The evidence favorable to plaintiff made submissible issues on defendant's knowledge that the method used by plaintiff in turning the metal sheet over would likely be followed and that he would make use of the top edge of the anvil and the floor in so doing. Wellinger v. Terminal R. Ass'n, 353 Mo. 670, 183 S.W.2d 908, 911[1, 2]; Hill v. Terminal R. Ass'n, 358 Mo. 597, 216 S.W.2d 487, 491, 492[1-3]; Allbritton v. Property Servicing Co., 361 Mo. 1041, 238 S.W.2d 104, 403; Streicher v. Mercantile Trust Co., Mo.Sup., 31 S.W.2d 1065, 1068[4, 5]. As between master and servant, persons engaged in the same business, we have said a custom need not be proven with such fullness as would make it a rule at common law. O'Donnell v. Baltimore & O. R. Co., 324 Mo. 1097, 26 S.W.2d 929, 933; Young v. Terminal R. R. Ass'n, Mo.Sup., 192 S.W.2d 402, 404[1-3]; 25 C.J.S., Customs and Usages, Sec. 9, p. 84. A number of defendant's cases were before the court in the Wellinger and Hill cases, supra.

Defendant contends plaintiff failed to discharge his burden of establishing actionable negligence with respect of the alleged uneven and sloped condition of the floor.

The testimony hereinbefore mentioned and the photographs admitted in evidence of defendant's press and floor were sufficient to sustain findings that immediately south of the extension of the concrete base of the press the dirt floor had been loosened by the movement of the feet of men using sledge hammers and otherwise working at the press to such an extent that it sharply sloped for about 4 inches to the south; that defendant had knowledge of this; that the floor was made level when it became bed; and that this condition contributed to plaintiff stumbling or stubbing his toe and hindered him in getting his foot out of the way of the falling sheet iron.

The following cases holding actionable negligence for the jury bear on the issue. A sudden, abrupt, and rounded downward slope of 1 1/2 inches in 8 inches in the surface of a sidewalk. Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 565. A concave depression (or dip) of 4 to 8 inches in 15 feet in the surface of a street in a case wherein the passenger in the back seat of an automobile was injured. McCormick v. Kansas City, Mo.Sup., 250 S.W.2d 524, 525. A depression of 3/4 to 1 1/2 inches and 3 feet square in a sidewalk. Butler v. City of University City, Mo.App., 167 S.W.2d 442, 445. A pie pan hold 1 1/2 to 4 inches deep, 6 to 8 inches in diameter in a street. Young v. Kansas City Pub. Serv. Co., Mo.App., 255 S.W.2d 113, 116.

Defendant's cases may be distinguished on the facts and the applicable law. Sprankle v. Thompson, Mo.Sup., 243 S.W.2d 510, 514[3, 4]; Ford v. Dickinson, 280 Mo. 206, 217 S.W. 294, 298; McIntyre v. St. Louis & S. F. R. Co., 286 Mo. 234, 227 S.W. 1047, 1051, involved injuries to switchmen occasioned by insufficient clearances with structures maintained by the railroad, so far as shown, in accord with proper railroad operating practices. In...