Pritchard v. Thompson

• Citation: 156 S.W.2d 652
• Decision Date: 30 October 1941
• Docket Number: No. 37257.,37257.
• Court: Missouri Supreme Court
• Parties: T.F. PRITCHARD v. GUY A. THOMPSON, Trustee of THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

156 S.W.2d 652

T.F. PRITCHARD v. GUY A. THOMPSON, Trustee of THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 37257.

Supreme Court of Missouri.

Division One, October 30, 1941.

Motion for Rehearing Withdrawn, November 24, 1941.

Appeal from Stone Circuit Court. — Hon. Robert L. Gideon, Judge.

REVERSED AND REMANDED.

Thos. J. Cole and McReynolds & Flanigan for appellant.

(1) The court erred in refusing defendant's demurrer to the evidence. Stone v. Mo. Pac. Ry. Co., 293 S.W. 367. (2) The court erred in instructing the jury that defendant was under a duty to provide plaintiff a safe place in which to work. Stone v. Mo. Pac. Ry. Co., 293 S.W. 367. (3) The court erred in instructing the jury that defendant was under a duty to warn plaintiff. Brooks v. Kansas City Gas Co., 127 S.W. (2d) 427; Mitchell v. Westport Hotel Operating Co., 19 S.W. (2d) 528; Broughton v. Oregon-Washington R. & Nav. Co., 244 Pac. 558; Kalinski v. Williamson County Coal Co., 263 Ill. 257, 104 N.E. 1097.

Edward V. Sweeney and Sizer & Myers for respondent.

(1) A prima facie case of negligence was made because the evidence shows that the plaintiff, while on his knees, was knocked from the east end of a narrow cap of the defendant's interstate bridge, by the falling of a stringer which had been negligently placed in a tilting position by co-workers; that the plaintiff had no knowledge that said stringer had been so placed in a tilting position; that the foreman had supervised the placing of the stringer in this tilting position, and knew that it was not in a position to bolt up; that notwithstanding this superior knowledge, this foreman ordered the plaintiff to get down onto the narrow end of the cap to start bolting, without warning him of the tilting position of the stringer. Title 45, U.S.C.A., sec. 51; Northwestern Pac. Ry. Co. v. Fiedler, 52 Fed. (2d) 400; Crane v. Liberty Foundry Co., 322 Mo. 592, 17 S.W. (2d) 945; Clark v. Union Iron & Foundry Co., 234 Mo. 436, 137 S.W. 577; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W. (2d) 14; McCarver v. St. Joseph Lead Co., 216 Mo. App. 370, 268 S.W. 687; Ruggeri v. Mitchell Clay Mfg. Co., 322 Mo. 737, 15 S.W. (2d) 775; Parsons v. Hammond Packing Co., 96 Mo. App. 372, 70 S.W. 519; Doyle v. M., K. & T. Trust Co., 140 Mo. 1, 41 S.W. 255; Engram v. Prairie Black Coal Co., 319 Mo. 644, 5 S.W. 413; Bran v. Hydaulic Press Brick Co., 319 Mo. 651, 288 S.W. 941; Minter v. Gidinsky, 219 Mo. App. 31, 228 S.W. 1075; Sullivan v. Hannibal & St. Joseph Ry. Co., 107 Mo. 66, 17 S.W. 748; Savage v. Ratterman Bldg. & Cont. Co., 214 S.W. 290; Keegan v. Kavanaugh, 62 Mo. 230; Fisher v. Webb Kunze Const. Co., 263 S.W. 1022; Bequette v. Pittsburgh Plate Glass Co., 200 Mo. App. 506, 207 S.W. 852; Corby v. Missouri & K. Tel. Co., 231 Mo. 415, 132 S.W. 712; McDonald v. Central Ill. Const. Co., 196 Mo. App. 57, 190 S.W. 633; Medley v. Parker Russell Min. & Mfg. Co., 207 S.W. 887; Broomfield v. Wurster Const. Co., 118 Mo. App. 254, 94 S.W. 304; Hall v. Wabash Ry. Co., 145 S.W. 1069; Greenstein v. Christopher & Simpson Architectural Iron & Foundry Co., 322 Mo. 540, 178 S.W. 1179; Reed Coal Co. v. Nichols, 136 S.W. 847. (2) The court did not commit error in giving plaintiff's instructions 1 and 2, whereby the jury was told that the defendant was under a duty to provide the plaintiff with a reasonably safe place in which to work. Northwestern Pac. Ry. Co. v. Fiedler, 52 Fed. (2d) 400; Winter v. Chicago, R.I. & P. Ry. Co., 185 S.W. 1172; Cases under point (1). (a) The foreman gave the plaintiff a specific order to start to bolt up the stringer. This unqualified order of the foreman was tantamount to an assurance that the place was reasonably safe for the plaintiff to get down on the narrow cap on his knees to start bolting up the stringer. Title 45, U.S.C.A., sec. 51; Crane v. Liberty Foundry Co., 322 Mo. 592, 17 S.W. (2d) 945; Clark v. Union Iron & Foundry Co., 234 Mo. 436, 137 S.W. 577; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W. (2d) 14; McCarver v. St. Joseph Lead Co., 216 Mo. App. 370, 268 S.W. 687; Ruggeri v. Mitchell Clay Mfg. Co., 322 Mo. 737, 15 S.W. (2d) 775; Parsons v. Hammond Packing Co., 96 Mo. App. 372, 70 S.W. 519; Doyle v. M., K. & T. Trust Co., 140 Mo. 1, 41 S.W. 255; Engram v. Prairie Black Coal Co., 319 Mo. 644, 5 S.W. 413; Bran v. Hydaulic Press Brick Co., 319 Mo. 651, 288 S.W. 941; Minter v. Gidinsky, 219 Mo. App. 31, 228 S.W. 1075; Sullivan v. Hannibal & St. Joseph Ry. Co., 107 Mo. 66, 17 S.W. 748; Savage v. Ratterman Bldg. & Contracting Co., 214 S.W. 290; Keegan v. Kavanaugh, 62 Mo. 230; Fisher v. Webb Kunze Const. Co., 263 S.W. 1022; Bequette v. Pittsburgh Plate Glass Co., 200 Mo. App. 506, 207 S.W. 852. (b) The defendant's foreman had complete supervision and control over the work on this interstate bridge, and the plaintiff was under no duty to inspect, but was doing a mere detail of the work under the immediate control, orders and direction of the defendant's foreman. Therefore, the defendant owed the plaintiff the duty to furnish him a reasonably safe place in which to do his work. Corby v. Missouri & K. Tel. Co., 231 Mo. 415, 132 S.W. 712; McDonald v. Central Ill. Const. Co., 196 Mo. App. 57, 190 S.W. 644; Medley v. Parker Russell Min. & Mfg. Co., 207 S.W. 887; Broomfield v. Wurster Const. Co., 118 Mo. App. 254, 94 S.W. 304; Hall v. Wabash Ry. Co., 145 S.W. 1069; Greenstein v. Christopher & Simpson Architectural Iron & Foundry Co., 322 Mo. 540, 178 S.W. 1179; Reed Coal Co. v. Nichols, 136 S.W. 847. (3) Instruction No. 3 is proper under the evidence, as the defendant did owe the plaintiff the duty to warn him that the stringer was placed in a pivoted and tilting position, which fact was not known to the plaintiff, but was known to the foreman and the plaintiff's coemployees. Savage v. Ratterman Bldg. & Contracting Co., 214 S.W. 290; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W. (2d) 543; Dowling v. Allan & Co., 6 Mo. App. 195; Morris v. Mo. Pac. Ry. Co., 187 N.W. 130. (4) Appellant did not plead assumption of risk, but did plead that the plaintiff was guilty of specific acts of contributory negligence, thereby admitting that a duty was owed to the plaintiff to furnish him a reasonably safe place to work, and that the appellant was negligent in leaving the stringer in a tilting position. Title 45, U.S.C.A., sec. 53; Title 46, U.S.C.A. sec. 54, as amended August 11, 1939, Chap. 685, Secs. 1, 53, Statute 1404; Grosvener v. New York Cent. Ry. Co., 343 Mo. 611, 123 S.W. (2d) 173; Vaughan v. St. Louis Merchants Bridge Terminal Ry. Co., 322 Mo. 980, 18 S.W. (2d) 62; Adams v. Quincy, O. & K.C. Ry. Co., 287 Mo. 335, 229 S.W. 790; Delaney v. Tampa Northern R. Co., 2 Fed. (2d) 734; Bowen v. K.C., 140 Mo. App. 695, 126 S.W. 790; Arizona Eastern Ry. Co. v. Bryon, 157 Pac. 376; Ross v. St. Louis & S.F. Ry. Co., 144 Pac. 844; Farmers & Traders Bank v. Kendrick, 341 Mo. 571, 108 S.W. (2d) 62; Fleming v. Joseph McMahon Contracting Corp., 45 S.W. (2d) 452; T.M. Bruner Granitoid Co. v. Glencoe Lime & Cement Co., 187 S.W. 807; Krapz v. Rally, 47 S.W. (2d) 221; Dickey v. Porter, 203 Mo. 1, 101 S.W. 586.

BRADLEY, C.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A., Sec. 51 et seq., to recover for injuries resulting from a fall from a trestle. Plaintiff recovered a judgment for $20,000, and defendant appealed.

Plaintiff was a bridge carpenter, and on the day of his injury, February 10, 1937, the bridge crew, under foreman Brooks, was engaged in putting new stringers in a bridge about three miles south of Aurora, Missouri. The bridge extended north and south and was constructed on wooden bents, the cross timbers of which are called caps. On top of the caps, and on either side of the bridge, were four wooden stringers about two inches apart. These stringers were twenty-four feet long, eight inches thick, and sixteen high. Near the ends of the caps and on top thereof, were boards, called shims, about two inches in thickness, twelve inches in width, and forty-four inches in length nailed to the caps. The bents were twelve feet apart, and a twenty-four foot stringer rested on three caps or bents, one at either end of the stringer and one midway. The four stringers were separated by iron spools and bolted together by four bolts forty-four inches in length, and when bolted together the four stringers make what is called a cord. To put in the new stringers the track was lifted with jacks, the old cord removed and the new stringers lifted by means of a windlass or crab on a push car, and placed by the men on the bridge.

Plaintiff fell from the east side of the bridge and from the end of the middle cap. He was on his knees on the end of the cap. The east, or outside stringer had been so placed on the shims that about half of its eight-inch surface upon which it rested extended over the end of the shim. The outside stringer, extending over the shim, as stated, tilted over, knocked plaintiff from the end of the cap, and both he and the stringer fell twelve or fourteen feet. Plaintiff was seriously and permanently injured.

Five grounds of negligence were alleged, but only three of these were submitted, viz.: (1) Failure to exercise ordinary care to furnish plaintiff a reasonably safe place to work; (2) that defendant's employees, without warning to plaintiff, negligently placed the outside stringer on the shims in such position that it tilted and caused plaintiff to fall; and (3) that defendant's foreman, without warning, negligently directed plaintiff to get down on the end of the cap to place the bolts, when he (the foreman) knew, or in the exercise of ordinary care, could have known that the stringer was not properly placed on the shims and would likely tilt and cause plaintiff to fall.

The answer was a general denial and a plea of contributory negligence, alleging "that plaintiff was employed by defendant as a bridge carpenter at said time and place and was thoroughly familiar...