Quinlan v. American Car & Foundry Co.

• Decision Date: 10 April 1920
• Citation: 225 S.W. 440
• Court: Missouri Supreme Court
• Parties: QUINLAN v. AMERICAN CAR & FOUNDRY CO. et al,

225 S.W. 440

QUINLAN v. AMERICAN CAR & FOUNDRY CO. et al,

Supreme Court of Missouri.

April 10, 1920.

Rehearing Denied December 2, 1920.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Clara E. Quinlan against the American Car & Foundry Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

The plaintiff instituted this suit in the circuit court of the city of St. Louis, against the defendant, to recover $10,000 damages for personal injuries alleged to have been negligently inflicted upon her husband, which resulted in his death.

The trial resulted in a verdict and judgment for the plaintiff for the sum sued for, and the defendant duly appealed tile cause to this court.

The charging clause of the petition is in this language:

"Plaintiff further says that said injuries which caused the death of the deceased were directly caused by the negligence of the defendant, or its superintendent, or foreman, in charge of the work in which deceased was engaged, in ordering the hot metal poured in said mold or pattern or wheel when he knew, or by the exercise of ordinary care could have known, that it would explode."

And the answer was a general denial, and the following plea of contributory negligence says:

"The defendant says that its plea of contributory negligence set up three specific defenses: "First, in that the deceased, not being ordered by any one to participate in the work in which he was engaged at the time of his injury, and the same being no part of his regular duty, negligently volunteered for a service which the defendant company had not employed or ordered him to render.

"Second, that, having so volunteered, he negligently prepared the channel into which the molten iron was to be poured around the outer edge of the car wheel. And

"Third, having been burned by molten iron upon his head the injury thus inflicted was not sufficient to cause death, but the deceased neglected to secure prompt medical attention and neglected to take proper care of his wound and thereby directly contributed to cause his own death."

The evidence for the plaintiff was substantially as follows:

"Clara E. Quinlan testified she was the wife of deceased, and they had been married 9 years, and the deceased worked for 18 or 19 years for the American Car & Foundry Company; that deceased was 37 years old, and he came home on the day of the accident between 5 and 5:30 with his head bandaged; that this was on Wednesday, January 17, 1917; that deceased went to work the next day and the bandage was not removed from his head during this time; that Thursday night deceased came home wearing the same bandage he had on when he went to work, and she put a clean bandage over it that night, but did not remove the old one, and that deceased went to work again on Friday morning; that on Friday evening when he came home he still had the same bandage on and that he did not work Saturday; that on Thursday he went to the doctor, and on Saturday morning he went to the doctor about 11 o'clock, and when he returned he had a clean bandage on; that he did not go to the doctor on Sunday and did not go to work on Monday; that on Monday his head began to hurt him and he consulted their family doctor; that from the time deceased first came home on Wednesday, the day he was hurt with the bandage on his head, to the time they went to Dr. Wenger, the family physician, the bandage on his head was not removed at any time at home; that when Dr. Wenger, the family doctor, removed the bandage, his head was swollen and the wound looked red and angry, and that the hair was all matted down in the wound, and she did not think any of the hair had been cut from around the wound; that Mr. Quinlan was not able to get up on Tuesday, and Dr. Wenger called to see him two or three times a day after that until he died, and that his head continued to swell from Monday, and it continued to get larger until he died; that after his death she took an envelope and two papers out of a pocket of the coat which deceased wore to work on the day he was injured, and the papers were identified and marked `Plaintiff's Exhibits A, B, C.' The exhibits referred to were identified as being cards which the defendant gave to its employees when injured for them to go to the company doctor. These exhibits showed the date of the injury to be January 17, 1917, the same `day of the injury. It showed the date that the doctor requested the deceased to return for treatment which was January 18, 1917, on Thursday, and the deceased went to the doctor on that day. It also shows that the next date deceased was requested to return was January 20, 1917, on Saturday, and deceased went to the doctor on this date and got a clean bandage.

"Jake Herman testified that he was wheel foreman for the Missouri Pacific Railroad Company, and had charge of the inspection and testing of wheels; that he had some wheels tested at the American Car & Foundry Company on the 17th of January, 1917; that he spent the greater part of the day selecting these wheels for tests, and when they were selected they were on a platform out of doors about a half a block from the test room; that while on the platform he was notified that his wheels were ready to pour and he went into the test room.

"Q. Now, how long about were you on the platform that afternoon, just approximately? A. Until. I was called by the foundry people to come down to the testing room that the iron was ready to pour—

"Q. Now, when you got into the testing room, what did you find in there? A. I found these three or four tests was poured, and I noticed that there was one wheel missing, and I made the remark to Mr. Gottfried that I had picked seven wheels, and there was only six put up— what I mean by that, that is, prepared for the tests, and I looked around, and I noticed one wheel standing by the door, and I verified that wheel, and I told Mr. Gottfried, `Here is the wheel that I selected,' and Mr. Gottfried replied that he will prepare that for the test while we poured the balance of the wheels, the test wheels, which was done.

"Q. Now, when you say Mr. Gottfried, that is Mr. Gottfried, the superintendent there? A. Yes, sir.

"Q. Did you see that wheel, the seventh wheel, when it was brought from the door and put up for the test?

"He then testified this was the outside door toward the platform where the wheels were when he inspected them; that the door was I open and the wheel was leaning up against the door about half outside and half inside. He testified he could not tell from looking at the wheel whether it was hot or cold. He testified that iron was porous like the human body. He testified that after the seventh wheel had been prepared for the test that no hot head was put on it; that when they began to pour the molted iron in the channelway it exploded but did not break. He further testified that he had charge of the inspecting and testing of wheels since 1911 for the Missouri Pacific Railroad Company, and that he made three or four tests of wheels a week during that time. He said that in making these tests a car wheel was laid on the ground with the flange down; that a channelway was formed around the outside of the wheel about 1½ inches wide and 4 inches deep by using sand for the outside wall of this channelway, and that the flange of the wheel formed the bottom of the channelway and the outer rim of the wheel the inside wall; that molten iron was poured in this channelway when tests were made.

"John Gross testified that he had worked for the defendant about five years, and on the 17th day of January, 1917, was in the foundry department, and that as a part of his duties he poured tests, and that he was assisting in' pouring the tests on the day when Quinlan was burned; and his evidence about pouring these tests that day is:

"Q. Did you pour any tests? A. Yes, sir.

"Q. How many tests did you pour? A. Seven.

"Q. Did you have anything to do with the putting up of these tests? A. No, sir.

"Q. Did you see them when they were put up? A. Yes, sir.

"Q. Who put them up? A. Mr. Preston and another fellow that worked down there put up the tests, the boy, and Mr. Preston and Mr. Quinlan put up the seventh one.

"Q. Did you see Mr. Quinlan when he came in there? A. Yes, sir.

"Q. Before he went to work? A. Yes, sir.

"Q. Do you know how came him to come into the testing room to help put up that wheel? A: He was called in.

"Q. Who called him in? A. Mr. Gottfried.

"Q. That is Mr. C. W. Gottfried, the superintendent? A. Yes, sir.

"Q. Where was Mr. Quinlan when he was called? A. Coming in the gangway, going to his work.

"Q. What did Mr. Gottfried say to him? A. He called him in and asked him if he would not put it up for a hot test.

"Q. That hot test that you refer to, was that this seventh wheel? A. Yes, sir.

"Q. And did Mr. Quinlan come in? A. Yes, sir.

"Q. Did you see the seventh wheel when the other tests were being poured? A. No, sir.

"Q. Did you see it when they brought it in? A. No, sir.

"Q. Did you see it after it came in before it was put up? A. Yes, sir.

"Q. I will ask you what its condition was— was it wet or dry or cold, or what was its condition? A. I don't know. "

"Q. Who poured it? A. Well, a colored fellow, and that fat fellow over there; we poured it.

"Q. Did anything happen while you were pouring it? A. It exploded and blowed the iron out of it.

"This witness testified that he saw Quinlan after this and he was standing about 20 feet away holding his head; that he saw his head, and it was burned, a pretty bad injury. This witness was subsequently recalled and identified plaintiff's Exhibits A, B, C, as blanks used by defendant and furnished to injured employees when it sent them to the company doctor.

"Harry Wagner testified that he worked for the defendant at the time of the injury and that he was the fat fellow pointed out by the witness Gross; that he was there when they were...