Parker v. Springfield Ry. Services/Anheuser-Busch, Inc.

• Citation: 897 S.W.2d 103
• Decision Date: 15 March 1995
• Docket Number: ANHEUSER-BUSC,INC,No. 19538,19538
• Parties: Janet PARKER, et al., Respondents, v. SPRINGFIELD RAILWAY SERVICES/, et al., Appellants.
• Court: Court of Appeal of Missouri (US)

Page 103

897 S.W.2d 103

Janet PARKER, et al., Respondents, v. SPRINGFIELD RAILWAY SERVICES/ANHEUSER-BUSCH, INC., et al., Appellants.

No. 19538.

Missouri Court of Appeals,

Southern District,

Division One.

March 15, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 7, 1995.

Application to Transfer Denied

May 30, 1995.

Raymond E. Whiteaker, Woolsey, Fisher, Whiteaker & McDonald, Springfield, Edward M. Vokoun, Evans & Dixon, St. Louis, for appellants.

Douglas W. Greene, Clifton M. Smart III, Jeffrey W. Bates, Strong & Associates, P.C., Springfield, for respondents.

PER CURIAM.

James Parker was employed as a welder by Springfield Railway Services. On August 28, 1991 he collapsed at work and died either before or shortly after reaching the Lester Cox Medical Center. His widow and children sought compensation for his death, asserting that he was electrocuted while working. The employer argues that the evidence does not support the finding of accidental death, suggesting that Parker suffered a heart attack. The Administrative Law Judge ruled in favor of the claimants, awarding compensation and also a 15% penalty pursuant to § 287.120(4), RSMo Supp.1993, for violation of § 292.020, RSMo 1986, requiring guarding of dangerous industrial machinery and equipment, or warning of the dangers when guarding is not possible. The Labor and Industrial Relations Commission adopted the recommendation of the Administrative Law Judge and issued an award accordingly. The employer appeals, contending that the award of compensation "is based on speculation and conjecture, is not supported by substantial and competent evidence, is contrary to the overwhelming weight of the evidence, and is contrary to law." It makes the same contentions as to the 15% penalty. We sustain the award of the commission.

We find the employer's 41-page statement of facts less than helpful because it includes, in addition to the evidence supportive of the award, conflicting evidence which the commission did not have to and did not accept. The statement is, in effect, a digest of the record, and this is not what is contemplated by Rule 84.04(c). Our reviewing authority is defined by § 287.495.1, RSMo 1986. Resolution of conflicting evidence is for the commission, not for the courts. All evidence and inferences to be drawn from evidence are viewed in the light most favorable to the award. Smart v. Chrysler Motors Corp., 851 S.W.2d 62, 64 (Mo.App.1993). If the facts found by the commission are supported by competent and substantial evidence the court will disregard contrary evidence. We review the record in accordance with these precepts and state the facts which the commission might have found in support of the award.

On August 28, 1991, Parker went to work about 5:30 a.m. He wanted to start work early and work through the noon hour so that he could leave early. About 7 a.m. Jeffrey Bilyeu, another welder, joined him. They were applying a "chalk track" in railroad cars used to transport automobiles. Their equipment consisted of a power supply known as a "welder" or "welding machine" plugged into a wall outlet, a wire feeder, cables to carry the wire, and a "stinger" with a trigger. When the welder is plugged into a power source and the start-up button on the welder is pushed electric power is available to the entire unit. When the trigger is pulled wire comes off a drum on the wire feeder, through cables, and out through the stinger. The wire is energized and, when it hits the metal of a car that is grounded, it becomes hot and melts so as to serve the same purpose as a welding rod. It is sometimes necessary to adjust the tension on the rollers the wire feeds through coming off the drum, and this may be accomplished by turning bolts on top of the pulleys. The operator could then check the tension by pressing the trigger on the stinger, which would cause energized wire to exude, or by pressing a "jog switch" on the wire feeder, which would push unenergized wire through the cables. Most of the operators apparently press the trigger to check tension, rather than using the jog switch.

Parker and Bilyeu finished working on one car about 11:30 a.m. and moved their equipment to the next car they were to work on. Bilyeu saw Parker plugging his power supply to a wall outlet, but did not see him pressing the start-up button. Bilyeu then began his luncheon break. At that time he saw Parker's wire feeder and cables on top of the welder. It was Bilyeu's practice, and that of the other welders, to push the start button after plugging the welder into the wall plug and to leave the unit turned on so long as work continued at a particular location. If the unit has been unplugged from the wall outlet and is then plugged in again the start-up button must be pushed to turn the welder on, even though it was on when the plug was pulled.

Parker chose to work through the lunch hour. About noon he went to the tool room to wipe his glasses and to drink Gatorade furnished by the employer. There he visited with Larry Winder, a custodian who was an experienced welder. The temperature was 86 degrees Fahrenheit at noon. Parker left the tool room and said that he was going back to work. Winder, so far as the record shows, was the first to reach Parker after he was stricken and the last to speak to him while he was alive. The employer seems to argue that Winder's testimony must be taken as true. The Administrative Law Judge stated, however, that "[i]t is not unreasonable to afford precious little weight to the testimony of Mr. Winder and his characterization of events,...."

Winder testified that, from the tool room, he could observe Parker working in a car some 40 to 50 feet away. We give no attention to his variant earlier statements. Parker walked through the car with an apparently normal gait but had to stoop because of the low clearance. He was wearing his gloves. Winder had work to do in the tool room and did not observe Parker continuously. He next saw him kneeling and then saw him roll over on his back. Winder immediately went to see if he needed help. Parker pointed to his chest and stomach but made no audible response. Winder then ran to the superintendent's office to summon aid, returning to the car before anybody else arrived. Winder turned the power off, later giving conflicting accounts as to how he accomplished this. He looked at his watch which showed 12:30 p.m. Parker did not have his gloves on and was not wearing his welding hood. He was lying on top of the cables which carried the wire from the feeder and through the stinger. His insulated wire cutting pliers were on the floor beside him. The pliers would be used to cut excess wire after adjusting the tension. Different witnesses placed the stinger under Parker, or from three to ten feet from his body.

In testimony which the employer regards as crucial Winder testified that he first undertook to turn the welder off by pressing the stop button, which is on its right side below, and independent of, the start-up button. He felt and heard no vibration and concluded that the unit was not energized when he pressed the stop button. If the unit were not energized, then Parker could not have been electrocuted. The Administrative Law Judge pointed out that Winder at various times had said that he cut the power off by pressing the stop button, which would have been unnecessary if the unit were not turned on, that he had disconnected the plug from the wall outlet, and that he had flipped the circuit breaker switch on the box near the wall outlet.

A photograph showed that Parker had taken steps to prepare for welding at the site. He had cut a notch out of the track and the next step would be to begin welding, although there was no indication that he had done any welding before he collapsed. Wire was seen protruding from the stinger and this evidence, together with Bilyeu's testimony as to the custom of the welders, persuaded the judge that the equipment was energized. It could be inferred that Parker had prepared to weld, which would require that the machine be turned on, and then found problems with the tension, which he undertook to adjust, removing his gloves and going to his knees. The commission might have considered it unusual that he would not have turned on the unit by this time, and could properly infer that the machine was energized when he collapsed.

The employer also makes much of Winder's testimony as to the location of the stinger and other items of equipment after Parker had collapsed. The Administrative Law Judge observed that conflicting accounts had been presented and concluded that "it would not be unreasonable...