Phillips v. American Car & Foundry Co.

• Decision Date: 29 June 1926
• Docket Number: No. 19567.,19567.
• Parties: PHILLIPS v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

287 S.W. 810

PHILLIPS v. AMERICAN CAR & FOUNDRY CO.

No. 19567.

St. Louis Court of Appeals, Missouri.

June 29, 1926.

Rehearing Denied July 8, 1926.

Appeal from St. Louis Circuit Court; Anthony A. Ittner, Judge,

"Not to be officially published."

Action by Chester A. Phillips against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Arnot L. Sheppard and Watts & Gentry, all of St. Louis, for appellant.

Fred Berthold, of St. Louis, for respondent.

DAUBS, P. J.

This is an action for personal injuries sustained by plaintiff on September 10, 1923, while in the employ of defendant. Upon a trial to a jury, plaintiff recovered a verdict for $3,000 upon which judgment was entered, and from that judgment defendant appeals.

This is the second appeal in this case, the first case being reversed and remanded because of errors in plaintiff's instructions. See Phillips v. American Car & Foundry Co., 274 S. W. 963.

The petition in the instant case pleads negligence on the part of defendant in the following respects: (1) That plaintiff directed that certain posts be piled, without providing braces to support them; (2) that defendant assured plaintiff there was no danger of the posts falling; (3) that defendant placed a small, insufficient brace back of the posts; (4) that defendant ordered the posts piled five or six feet high, instead of the usual height of three or four feet; (5) that defendant ordered the posts piled at a place where machinery in motion caused constant vibration; (6) that defendant ordered the posts piled at a place where overhead cranes in motion caused constant vibration.

Defendant answered with a general denial and a plea of contributory negligence in the manner of piling the posts, and offered no evidence whatever.

Plaintiff testified that he was hired by defendant through Mr. Schultz, the assistant superintendent of defendant company, who turned plaintiff over to a man named Sam; that, when the assistant superintendent had taken plaintiff over to Sam, he told plaintiff that Sam was his foreman, and that he was to work for him and do as Sam told him to do. Plaintiff said he was helper, holding material for Sam on a punch press; that Sam was running a punch press to punch holes in iron posts, and plaintiff was holding the material during this process; that each time plaintiff would get a piece of material punched, Sam would tell him what to do and to do it, and then plaintiff and Sam would take the material back and put it on a pile, setting same one on top of the other. The iron posts had a cup in them, and they would place the posts with the cup down, leaving a space of four inches between the flanges of same. They would place 16 posts in a pile, which would make a pile about feet high, reaching to about plaintiff's head. When one stack would be completed, they would start another stack nearby; they were placed on 2×4's. Plaintiff said they in getting the second stack piled, which reached about up to his chin; that, when they started on the third pile, the pile began to fall over and "busted out," so that the pile went back, and the top came over and threw plaintiff into the pile, when the second pile fell over and injured him.

Plaintiff said that before the pile fell he said to his foreman, Sam, that the iron piles looked shaky, and that Sam told him they would put a post of timber behind it. Plaintiff said there were no timbers at hand, but that, after looking around, Sam found a piece of 2×4 timber, about three and a half feet long; that Sam put this piece of timber the first stack; that there was a pile of tin back of the timber, so that the timber was between the tin and the first pile of posts, and that the stack of tin was about two feet high. Plaintiff said the placing of posts was done by the foreman, Sam; plaintiff had nothing to do with that, nor did plaintiff place the 2×4's on the ground. After the foreman placed the 2×4's between the tin and the first pile, he told plaintiff that it was all right, that the pile was safe, and they kept on working. Plaintiff says that when the pile broke, somewhere about the middle, the pile fell back somehow or other; that is, the center of the instead of moving outward, moved backward, and the top of it came over and knocked plaintiff down.

In describing the manner in which the plunger worked, plaintiff said that, when same came down, it would shake the whole machinery and the ground all around; that it was a very heavy machine and that there were other like machines causing vibration, or, as plaintiff described it, "it made an awful shake when it hit the ground"; that there were overhead cranes working about the place which would shake the whole side of the house, when it was running over with a heavy load; that each man operating a machine was the foreman of that machine. In describing directions, he said the pile broke west, that is, the center part of the stack fell west, causing the first stack to fall east from plaintiff. It appears that there was nothing between the first and second stacks of posts.

Schultz, the assistant foreman, testified for plaintiff, and admitted that he was the assistant foreman; that he had put plaintiff at the punch as helper to Sam, the operator, and that plaintiff's duties were to help the operator; that he had left his orders with the operator, and not with plaintiff. This witness said that the men would get their own braces in making these stacks and would sometimes use 4×4's, or 4×6's, or whatever they could find; that they would not put a brace between each stack, but would place them only at the back side of the first stack they started; that, on the morning in question, witness did not see any timbers lying around which could be used for braces; that the men usually would use two timbers in an A shape as braces, which would be long enough to reach to the top of the pile.

As to plaintiff's injuries, there is evidence that he lost the left ring finger between the middle and the distal joints; his little finger on the left hand was fractured several times and badly torn, being flexed inwardly, and is left stiff; his left forearm at the elbow was fractured, and he is unable to turn same out, causing a lost motion of his left elbow of from 5 to 10 per cent. There was evidence as to loss of wages and as to medical expenses. We will set out more...