McNulty v. Atlas Portland Cement Co.

• Decision Date: 06 January 1923
• Docket Number: No. 17184.,17184.
• Citation: 249 S.W. 730
• Parties: McNULTY v. ATLAS PORTLAND CEMENT CO. et al.
• Court: Missouri Court of Appeals

249 S.W. 730

McNULTY v. ATLAS PORTLAND CEMENT CO. et al.

No. 17184.

St. Louis Court of Appeals. Missouri.

January 6, 1923.

Rehearing Denied February 6, 1923.

Appeal from Hannibal Court of Common Pleas; Charles T. Hays, Judge.

"Not to be officially published."

Action by Edward McNulty against the Atlas Portland Cement Company and another. Judgment for plaintiff against the named defendant, and that defendant appeals. Affirmed.

George A. Mahan and Dulany Mahan, both of Hannibal, for appellant.

D. H. by and Ben E. Hulse, both of Hannibal, for respondent.

BIGGS, C.

This master and servant negligence case resulted in a verdict and judgment for plaintiff, from which defendant appeals.

The action was filed against the defendant cement company, a foreign corporation, and the Hannibal Connecting Railroad, a domestic corporation. In proper time the defendant cement company filed its petition for a removal of the cause to the District Court of the United States, which alleged diverse citizenship between plaintiff and defendant cement company; that more than $3,000 was involved in the controversy; that plaintiff's petition failed to allege any act of negligence on the part of the defendant Hannibal Connecting Railroad Company, in connection with any act of negligence on the part of the cement company; and that the charges against the cement company create a separable and distinct controversy between plaintiff and said cement company, which could be fully determined between them without the joinder of said railroad company, and hence the cause was removable.

The removal bond was approved, but the petition for removal was denied by the Hannibal court of common pleas. Thereupon defendant cement company filed a transcript in the office of the Clerk of the United States District Court for the Northern Division of the Eastern Judicial District of Missouri. Thereafter plaintiff filed a motion in said District Court to remand the cause to the state court, which was sustained by the federal court, and the cause remanded to the state court. A trial was there had, and at the close of plaintiff's case the court sustained a demurrer to the evidence offered by the defendant railroad company and instructed the jury that under the pleadings and the evidence plaintiff could not recover against the said defendant. Immediately defendant cement company filed another and a second application for removal of the cause to the federal court, setting up diverse citizenship, and, in addition to what was stated in the first application, that the defendant railroad company was joined by plaintiff as a codefendant for the fraudulent purpose of preventing a removal of the cause by said cement company to the United States District Court, and for no other purpose. This application was likewise denied by the lower court.

The defendant cement company owns and operates a, cement plant in Rails county, Mo., where plaintiff was employed at the time of his injuries. It owns rock quarries at its plant, from which rock is transported by it in cars over railroad tracks to its cement mills, where the rock is crushed and made into cement. The quarrying of the rock, the transportation thereof to the mill, and the process of the manufacture thereof into cement, were exclusively under the control of the defendant cement company, through its officers, agents, and employés. As the small dump cars of rock arrived at the cement mill they were pushed up on an elevated track about 15 feet above the ground, and, after being properly placed before the rock crushers (six in number), the bottoms of the cars were opened up by means of a certain mechanical apparatus which allowed the rock by a process of gravity to rim out of the cars and slide down a chute into or near the mouth of the rock crushers.

Plaintiff's duty was to stand at the mouth of one of the crushers, and with an iron bar and hook, push, or pull the rock into the mouth thereof after it was released from the cars. While the rock was being dumped from the car and sliding down the chute it was plaintiff's duty to get behind a concrete wall nearby for protection, which plaintiff did on the occasion of the accident. When the rock had apparently ceased running out of the car and down the chute, and after the car had started away, plaintiff stepped from behind the concrete wall and began the performance of his duties in pushing the rock into the crusher. As he did so a rock came from the bottom of the car, which had moved about 20 feet and stopped which rock came bounding down the elide, striking plaintiff on his foot and leg, thereby causing his injuries.

The acts of negligence charged against the cement company was a failure on its part to exercise ordinary care to furnish Plaintiff a reasonably safe place to work, by reason of its failure to close up the dumping mechanism of the car before it started away, thereby allowing a "rock left in the car to be released therefrom due to the jar and jolt of the train, which condition was known to defendant or could have been known by the exercise of ordinary care. Acts of negligence are also charged against defendant cement company by reason of its foreman and vice principal negligently failing to inspect the unloading of said car, and to direct the employés operating the same in the matter of closing said dumping mechanism, and also in negligently failing to direct said employés to close said mechanism, and to control the employés in the matter of the closing thereof, and also by negligently permitting said train to leave without having said mechanism closed.

The defendant generally denied the allegations of the petition, and set up a plea of contributory negligence and assumption of risk on the part of plaintiff; and a further plea that, if plaintiff received any injuries, they were occasioned by and resulting from the acts of plaintiff's fellow servants.

Plaintiff testified:

"When they stopped the car at my crusher No. 4, I got right behind the concrete wall— the one right in front of No. crusher. The rock ran out of the car, and I thought it had all run out—stopped running; the rock stopped running out. They started out of the house with the car. The foreman told me that he would see the car was closed up then I could go back to work. I picked up the iron hook and went to digging the rock in the mouth of the crusher as I always do. They started out with the train heard a noise, attracted my attention. I looked up and seen a rock fall from the car. It fell from the bottom of it. I should judge the car had moved 15 or 20 feet from where the rock was dumped when I saw the rock. The rock came down the incline and struck me. It came down 15 or 20 feet from where I was and struck some other obstruction, and came on and struck me before I could get away. * * * They went on out with the car. Mr. Shay (the foreman) was upstairs on the platform when the train went out. Later on he came down where we were at work. The said Melvin Shay was foreman over the rock house and crushers, and I was working under him the day I was injured. Whenever a load of rock came in from the quarry he was up on the platform directing the men where to put the rock and what to do. `When the train left on the return trip to the quarry he came down on the crusher floor to conduct us, tell us what to do saw him on the platform every time the train of rock came in there. I could see him talking to the men, could not hear him, see him give motions, signals where to put the rock and what he wanted them to do. His duties continued in about the same way as long as I was there. He told the men around the crusher what to do just the same as trainmen when they come into the rock house, told the men feeding the six crushers. `When I began to work there, Mr. Shay told me whenever a load of rock come in and went to drop a load " of rock at my crusher to get out of the way behind the concrete wall where it was safe, and whenever the rock quit coming out of the car and the car moved away from there for me to go back safely to my work, and that is all he told me. He said he would see the car was closed up before it moved away from the crusher, and he repeated his talk to me at different times—some two or three times. When they would bring a load of rock into a crusher, they would unload it and after unloading they were supposed to close up the hopper. He would close it up before it moved away from the mill. I didn't see him close up the mechanism after unloading the rock that day, but on other occasions saw them do it very often. It was his habit to close the hopper before the car left the mill. Never until this day did I see a rock drop from a moving car. The car this rock dropped from was a steel car that had been right opposite No. 4 crusher; I saw it stop there and I saw the car when it moved away from there."

It appeared that the train of cars was in charge of a crew, including a dumper and helper, whose duty it was to open and close the mechanism of the car; all of which employés were under the direction of Shay, the foreman.

Shay testified:

"My duties required me to be in the rock house. * * * I would go out on to this platform in discharge of my duties when a train was coming in and unloading and when they were going out. I was not in the stone house at the time Mr. McNulty was hurt. * * * I was not on the platform. I was just on the opposite side of the track when the train pulled out of the house. The object and purpose of my being on the platform when I was there was to notify the dumper where stone was wanted, and I did not see this particular train come in. I had advised the men to get out of the way and wait until the train unloads and starts away. I regard it as dangerous for them to be out there if the train had not moved away, and it would not be dangerous if the train had moved away and the dumping machinery had been closed. I didn't consider it safe when the train would come in...