Medley v. Parker-Russel Min. & Mfg. Co.

• Decision Date: 07 January 1919
• Docket Number: No. 15783.,15783.
• Citation: 207 S.W. 887
• Parties: MEDLEY v. PARKER-RUSSEL MIN. MFG. CO.
• Court: Missouri Court of Appeals

207 S.W. 887

MEDLEY v. PARKER-RUSSEL MIN. MFG. CO.

No. 15783.

St. Louis Court of Appeals. Missouri.

January 7, 1919.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

"Not to be officially published."

Action by Eleanor Jane Medley against the Parker-Russel Mining & Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Holland, Rutledge & Lashly, of St. Louis, for appellant.

Owen G. Jackson and Safford & Marsalek, of St. Louis, for respondent.

ALLEN, J.

Plaintiff is the widow of John Medley, deceased, and prosecutes this action, under sections 5426 and 5427, Revised Statutes 1909, for his death, alleged to have beet, caused by the negligence of the defendant company while Medley was in its employ as its servant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $6,000, from which the defendant prosecutes this appeal.

On December 7, 1915, the defendant was engaged in mining fire clay and in manufacturing fire clay products operating a mine and a plant or factory in the city of St. Louis; and plaintiff's deceased husband was in defendant's employ as a clay hauler upon these premises. At the time in question defendant had upon its said premises a large bank or pile of fire clay, formed by clay which had been taken from its mine and conveyed to this place by chutes or conveyers, and which had stood thus for perhaps three or four years. From time to time clay from this pile was hauled by wagons, as needed at defendant's plant situated near by. Plaintiff's husband, engaged in this work was shoveling into a wagon loose clay from a small pile thereof upon the ground, near a face or side of the large clay pile mentioned, forming an embankment, when the latter fell over upon him, crushing him and instantly killing him.

The evidence discloses that defendant's superintendent in charge of its entire plant and premises at this place was one Morris, though it appears that he was seldom about this clay pile. Plaintiff's evidence goes to show that one Stack was in charge of the work at the clay pile, and was given supervision over the men engaged in hauling clay therefrom, though it appears that Stack also worked as a laborer; i. e., in "picking" at this pile of clay, or pulling down the clay therefrom, and, at times, in shoveling into the wagons. Though the haulers sometimes picked at the large clay pile to obtain clay for their loads, it is said that this seldom occurred that Stack generally had sufficient loose clay in readiness. As there is quite a dispute between counsel as to the authority which Stack was shown to have possessed over plaintiff's husband and other workmen in defendant's employ similarly engaged, we shall state briefly the substance of the testimony touching the matter.

Stack, who was employed only about two weeks prior to the accident, testified that he was employed by defendant's superintendent, Morris, "to take charge of the clay pile." He stated, at first, that Morris told him "to keep clay down and help load the wagons, and give orders to the loaders where to pull in at," and in this connection he further testified that Morris told him, in substance, to go upon the clay pile from time to time and keep a watch for the appearance of cracks in the upper surface thereof, and to warn the other men; that "whenever it was ready to fall, there would be a crack up there, and there would be a warning for them." Later he testified that, when he was employed, Morris told him to instruct the men "where to pull in at and tell them what to do at the pile there"; and on cross-examination he was asked if all of the drivers or haulers did not work under the direction of Morris, and he said:

"No; I was supposed to instruct them at the pile. I was supposed to give them orders where to pull in at."

And he added that he told the haulers where to load their wagons.

Touching this same matter—i. e., the authority of Stack—one Owens, likewise in the employ of defendant at the time as a hauler, testified that Stack gave the "loaders," or haulers, "instructions as to where, when, and how they should work"; that he would tell them where to go in order to load their respective wagons and would tell them where to shovel. And the testimony of other witnesses is of like tenor.

The testimony of Morris, as defendant's witness, is to the effect that Stack was employed to work with pick and shovel at the clay pile; that he did not employ or instruct anyone to "look out for the drivers and watch for them," and did not instruct Stack to go on top of the pile of clay to look for cracks.

From the testimony of Stack and Owens, it appears that three days prior to the casualty Morris, defendant's superintendent, spoke to Stack, in the presence of Owens, in regard to the condition of the clay embankment at the particular place at which plaintiff's husband met his death. At this point in the embankment at about the center of one side of the pile, the clay jutted out, forming what the witnesses termed a "corner." It is said that the embankment, or face of clay at this place was straight—by which the witnesses evidently meant that it was about vertical— at the time of the conversation just mentioned. Stack says that Morris told him to work at this corner, in order to get "a falldown of the clay"—"to cut that corner off to make it fall." According to the evidence of Owens, however, Morris told Stack that this corner "was out farther than it ought to be, and he (Stack) ought to work on that corner and get it down"; that Morris told Stack to "straighten down the pile; it was higher there than the end, and it might fall."

This conversation, it is said, was had on Saturday and the casualty in question occurred early on the following Tuesday morning. In the meantime—i. e., during all of Monday Stack worked at this so-called corner; and it is to he inferred that he picked and shoveled clay from the base or lower portion thereof, by this means securing loose clay with which to load the wagons, and evidently intending to thereby cause this corner to ultimately fall. One Tuesday morning Stack had a pile of loose clay, about a wagon load, upon the ground, which he had picked or dug from this corner, and which lay near the face of the embankment, which was about 14 feet high at this point. Medley appeared with his wagon, and was directed by Stack to place it in a certain position beside this loose pile of clay, a few feet from the embankment, which Medley did; and thereupon, at Stack's direction, Medley placed himself between the small pile of loose clay and the embankment, and began to shovel the clay into the wagon. Stack took a position at the opposite side of the small pile of clay, and consequently farther from the embankment, and likewise began to shovel clay into the wagon. Medley and Stack had been in these respective positions, engaged in thus loading the wagon, for a short time—perhaps 20 minutes—when the embankment, to which Medley's back was turned at the time, fell or toppled over upon him, causing his death. It was developed in the evidence that the clay did not "slide down," but that "it fell right over—doubled over."

The evidence is that a crack or cracks at the top of the pile usually preceded a fall of any considerable quantity of clay therefrom. This was well known, and these cracks were regarded as danger signals. They had been known to appear hours, days, and even weeks before a fall. Morris, the superintendent, testified that "they almost always appear several days before the clay falls."

Stack testified that he usually went upon the top of the large pile of clay several times each day; that "generally" this was the first thing that he did upon going to work in the morning, and that he did this in order to look for cracks, and "see that everything was safe." He testified, however, that he did not go upon the pile on the morning in question, prior to Medley's injury and death. Medley's wagon was the first to be loaded that morning; and Stack testified, on cross-examination that he forgot to go upon the pile prior to the casualty.

Owens testified that on the morning in question, prior to Medley's death, he was upon a corner of this large clay pile, some distance from the corner that fell, engaged in shoveling clay into his wagon from the upper surface of the clay pile which was only about 6 feet high at that point; that about 10 minutes prior to the casualty he had occasion to go upon the pile at a point a short distance back from the edge of the embankment near which Medley was working; and that he then observed a crack in the clay about two inches in width, at this place, a few feet from the edge of the embankment. He gave no warning at that time, though it appears that he...