Reeder v. Crystal Carbonate Lime Co.

• Decision Date: 04 February 1908
• Citation: 129 Mo. App. 107,107 S.W. 1016
• Parties: REEDER v. CRYSTAL CARBONATE LIME CO.
• Court: Missouri Court of Appeals

107 S.W. 1016

129 Mo. App. 107

REEDER v. CRYSTAL CARBONATE LIME CO.

St. Louis Court of Appeals. Missouri.

February 4, 1908.

1. MASTER AND SERVANT — INJURIES TO SERVANT — DUTY OF MASTER — FURNISHING APPLIANCES.

Where a master has furnished sufficient suitable appliances, he is not liable for an injury to a servant caused by the fact that a fellow servant selected an unsafe appliance from among those furnished, which caused the accident.

2. SAME.

Defendant directed F., a millwright, to superintend the raising of a smokestack, which was to be done by means of a gin pole. F., being in need of certain ropes with which to raise the pole, went to a toolhouse, where a lot of cast-off ropes which had been previously used in drawing cars up a tramway had been placed, and from these selected one with which to raise the pole. During the process of the work this rope broke, and caused injury to plaintiff, who was assisting in the work. Held that, F. having testified that he selected the best rope he could find, the evidence showed that defendant was negligent in failing to provide a reasonably safe rope with which to do the work.

3. SAME — CONTRIBUTORY NEGLIGENCE.

In an action for injuries to a servant by the breaking of a guy rope claimed to be defective, evidence held to require submission of the question of plaintiff's contributory negligence to the jury.

Appeal from Circuit Court, Lincoln County; Jas. D. Barnett, Judge.

Action by William J. Reeder against the Crystal Carbonate Lime Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McKeighan & Watts, for appellant. W. A. Dudley, for respondent.

GOODE, J.

While working for defendant, plaintiff's foot was badly mashed in an accident, and this action was instituted to recover damages. Defendant is an incorporated company engaged in quarrying stone and manufacturing stone products. It has a quarry and works at Elsberry, in Lincoln county, and the accident occurred there. It will be difficult to impart an accurate notion of the scene and details of the occurrence without the aid of pictures. Photographs were submitted to the court to assist in understanding the facts, but these cannot be reproduced in this opinion. Immediately adjacent to a rocky bluff stood a rock-crushing plant, operated by the defendant company. The building in which the crushing machinery was situate was rather tall, and its sides were formed of upright boards. In the rear of this building was a much lower building, in which were the boiler and furnace of the mill. This house was called the "boiler house," and, as said, was immediately in the rear of the building in which the crushing machinery was contained. It stood against the side of quite a dump or fill, on which was laid a tramway used for conveying rock from the quarry to the crushers. The tramway and the dump on which it stood ended at a door in the rear and at one side of the main building. Therefore the boiler house was against the side of the dump, and was built so its eaves were almost on a level with the top of the dump and tramway. In January, 1906, changes had been made in the machinery and equipment of the mill, rendering it necessary to erect an additional smokestack which would project through the roof of the boiler house. One was procured about 50 feet long and 2 feet in diameter, and conveyed along the tramway until it was opposite the boiler house, when one end was laid on the roof of this building and the other left on the tramway, preparatory to raising it in position and anchoring it. In order to do this, it was necessary first to put in position, projecting through the roof of the boiler house, a massive upright pole, denominated by the witnesses a "gin pole." As we understand, the function of the gin pole was to act as a sort of derrick and leverage on which to pull in lifting the smokestack. The employé in charge of the operation of putting the smokestack in position was a millwright by the name of Feary, who testified he had been working for defendant two years in any capacity and as a common laborer. Feary was directed by the president and general manager of defendant company to procure a suitable pole, and had cut in the woods a small tree, about 28 inches in diameter at the butt and about 40 feet long, to use in lifting the smokestack. This pole was hauled up the tramway to the eaves of the boiler house, and five other employés besides Feary were summoned to aid in raising it. Among those summoned was plaintiff, who, at the time, was doing other work, and uttered an expression of unwillingness to assist in raising the pole, but was told he was ordered to do so by Mr. Pratt, the general manager. Roy Pratt, son of Ivan E. Pratt, the manager, was at the spot when the employés were about to raise the pole. The testimony is that the younger Pratt acted as boss or manager when his father was not about. Feary told Roy Pratt ropes were needed wherewith to raise the pole, and Pratt said there was a car load of ropes in the toolhouse, and for Feary to get what he needed there. The ropes in the toolhouse were cast-off articles which had been used in drawing cars up the tramway. When they became too worn and weak for further use in pulling the cars, they were thrown into the toolhouse. Feary selected three ropes from those pointed out to him, and swore those he selected looked to be the strongest and best in the toolhouse. They were adjusted to the pole; and while pulling on them, and when the pole was nearly in an upright position, one of them broke, letting the pole drop on the roof of the boiler house, where it struck the end of the smokestack which lay on the roof, jarring it so it slid off, and fell on plaintiff's foot. Plaintiff at the time was assisting in raising the pole, and was standing on the tramway near the eaves of the boiler house. Three witnesses testified the rope broke twice, once before the pole fell, and that, when it broke the first time, Roy Pratt ordered plaintiff to tie it, and proceed with its use, and plaintiff obeyed the order. The other witnesses who were present testified it only broke once.

Four charges of negligence are made in the petition; but, as one of them was abandoned during the trial, we will omit it from the statement. The first act of negligence assigned is the failure of defendant to provide suitable guy ropes to support the gin pole while it was being raised. The second assignment is the failure of defendant properly to secure and block the smokestack as it lay on the boiler house while the workmen were raising the pole. The smokestack had been blocked by Feary, who testified he placed a two-inch block under the end which lay on the roof of the boiler house. The third assignment of error was placing the gin pole so it rested on the elevated tramway while being raised, and in a position too near the smokestack, thereby endangering the workmen who were to raise first the pole and then the smokestack. We will dismiss the second and third assignments, with the statement that we do not consider either the proximity of the pole to the smokestack or the inadequate blocking of the latter was the proximate cause of the accident, which was unquestionably due to the breaking of the rope. For aught that appears, the stack would have remained securely on the roof until it was lifted if it had not been thrown off in the manner stated — an occurrence due to the rope breaking while the workmen were pulling on it in an attempt to raise the pole. During the entire operation Roy Pratt was present, and Ivan Pratt, the president and general manager of the defendant company came to the scene before the pole was raised, and looked on, simply as a spectator, he said; the job being in charge of Feary. The upshot of Ivan Pratt's testimony...