Rigsby v. Oil Well Supply Company

• Citation: 91 S.W. 460,115 Mo.App. 297
• Parties: RIGSBY, Appellant, v. OIL WELL SUPPLY COMPANY, Respondent
• Decision Date: 12 December 1905
• Court: Court of Appeal of Missouri (US)

91 S.W. 460

115 Mo.App. 297

RIGSBY, Appellant, v. OIL WELL SUPPLY COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

December 12, 1905

Appeal from Butler Circuit Court.--Hon. James L. Fort, Judge.

REVERSED AND REMANDED.

STATEMENT.--The business of defendant (a corporation) is converting hickory and ash sawlogs into pump rods, called "sucker rods," for deep wells. The logs used are from eighteen to thirty-two feet long. The first process in the manufacture of the rods is to saw the logs into planks from one and one-half to one and three-quarters inches in thickness. The second process is to run the planks through, what is termed "an edger," that cuts the planks into strips one and one-half or one and three-quarters inches square. The strips are then run through a finishing machine and are ready for use. The saw, edger and finishing machine are all on the same floor of the mill. Skids are laid parallel to each other and extend from the saw carriage over to the table of the edger. These skids are smooth and are kept lubricated. The planks, as they come from the saw, are piled one upon another on these skids and when a pile reaches a height of four or five feet, it is slid or shoved to the edger by the use of handspikes, being held in place by canthooks. The planks vary in width, the first one from a log being naturally narrower than the one taken from the center, and the logs also vary in diameter. The off-bearers at the saw and the workers at the edger are required to shove the piles of planks from the saw to the edger. The room in which these machines are located is twenty-five by thirty feet and the machines and piles of planks are all in plain view from any part of the room.

The plaintiff commenced work at the mill in October, 1902. He worked for about two months at the finishing machine, bearing off the rods as they were finished. Plaintiff was then put to work at the edger, where he continued to work until January 24, 1903, on which day a pile of planks that had been shoved over to the edger, fell upon him and broke his leg. The suit is to recover for this injury. The negligence alleged is that the pile of planks that fell upon plaintiff was negligently piled and that plaintiff failed to furnish him a safe place to work and that, "while this plaintiff, as a common laborer, was in the line of his duty in the employ of defendant at defendant's said factory, defendant's foreman having direction and control of plaintiff, carelessly and negligently directed, ordered and required plaintiff to go near said stack of lumber to assist in lifting a large plank that was lying with one end on the table of the large edger saw and the other end on or near the floor of said factory; that while plaintiff was stooped to take hold of said plank, one of said unbraced, insecure and dangerous stacks of lumber, about six feet high, so carelessly and negligently stacked as aforesaid, suddenly and violently fell down against, upon and across the body and legs of the plaintiff, thereby and thus breaking his leg," etc.

The answer was a general denial and a plea of contributory negligence.

At the close of all the evidence, the court instructed the jury that plaintiff could not recover, and the verdict, therefore, was for the defendant. Plaintiff appealed.

The evidence shows that W. E. Maddox was the foreman of all of the men at work on the floor of the mill where plaintiff was at work when injured, and that the planks were piled on the skids under his view and direction and in the way he had instructed the men to pile them. The evidence also shows that Austin had charge of the edger, put the planks through the machine and that his helpers (to lift planks from the piles to the edger table and to bear off the rods as they were sawed) were instructed by Maddox to obey Austin's directions, though Austin himself was under the control of Maddox. Plaintiff was an off-bearer of rods from the edger but whenever called upon by Austin, would help lift planks on to the edger table and help slide piles of planks from the saw over to the edger. Plaintiff testified that on the day he was injured, upon the order of Austin, he went to the far end of a plank to help lift it to the edger table and just as he stooped over to take hold of the plank, a pile of planks fell over on him, knocking him down and breaking his leg; that he had nothing whatever to do with the stacking of the planks and it was not a part of his duty to help stack them; that during all the time he was at work in the mill, the piles of planks could have been seen by him; that he was not over twenty feet from them and there was nothing to obstruct his view but he had never seen one of them fall, but had seen one topple and start to fall over against one of the men who held it until he and the man had pushed it back in place.

The evidence shows that there were no standards or other devices provided to keep the piles of planks from falling, and the defendant's evidence shows that the use of a fence or standards would be impracticable as they would be in the way and make the labor more difficult in removing the planks from the piles on to the edger table.

Dover one of plaintiff's witnesses, testified that the piles of planks frequently fell as often as twice a day, but sometimes they would not fall for a week or more. Defendant's witness Rice testified that he and Austin had raised one end of the plank onto the edger table and that the other end became entangled with a pile of planks just to the rear of the one that fell upon plaintiff, and Austin took a handspike and pried at the plank to remove it and thought he had removed it from the pile, but he had not, and when he and Austin took hold to lift it up it tottered the pile of planks behind the one that fell upon plaintiff; that he saw it was going to topple over and fall against the pile in front and hurried out of the way; that plaintiff started to go backwards and fell and the rear pile of planks fell over against the pile in front and knocked it over on plaintiff and thereby fractured his limb. Austin testified to the same state of facts, and also said that he hallooed to plaintiff to get out of the way, that the pile of planks was going to fall; that plaintiff's reply was: "Let her fall and be damned." Both plaintiff and Rice testified that they heard no warning from Austin that the planks were about to fall. Plaintiff further testified that when he was called by Austin to help raise the plank on the table, he went over there in a hurry for the reason that Austin had told him a day or two before that he was too slow and if he did not hurry he would have him "fired," and in his hurry he paid no particular attention to the pile of planks, in fact, did not notice it until after it fell upon him.

All of defendant's witnesses testified, including Maddox, that the piles of planks were built up to a height of from four to five feet, never six feet, and would sometimes fall over as often as two or three times a day and then again they would not fall perhaps for a week, and Maddox testified that he had been doing the same kind of work and having planks piled in the same way for twenty-one years and that plaintiff was the only one he had ever known to be injured by their falling that the men in the mill knew that the piles of planks were liable to fall at any time and kept watch and when they saw a pile was about to fall they would get out of the way, and as the pile toppled before it fell, they had plenty of time to get out of the way and avoid injury.

Judgment reversed and cause remanded.

David W. Hill for appellant.

(1) The obligation of the master towards its servants required it to furnish suitable tools and appliances and a reasonably safe place for the doing of the work demanded of its servants. Herdler v. Buck's Stove and Range Co., 136 Mo 3; Doyle v. Missouri, Kansas & Texas Trust Co., 140 Mo. 1; Rogers v. Meyerson Printing Co., 103 Mo.App 683; Reichla v. Gruensfelder, 52 Mo.App. 43; Turner v. Haar, 114 Mo. 335. The duty of seeing that the place, tools and appliances are such that the servant can perform his duties with reasonable safety is a personal one, which the master cannot delegate to a servant or any other person and thereby escape liability on its part. Rodney v. Railroad, 127 Mo. 676; Jones v. St. Louis, Naples and Peoria Packet Co., 43 Mo.App. 398; Zellars v. Missouri Water and Light Co., 92 Mo.App. 107; Steube v. Christopher & Simpson Architectural Iron and Foundry Co., 85 Mo.App. 640. (2) If the lumber had been properly stacked, no injury would have occurred; in other words, a stack of lumber not carelessly and not negligently built up, is not inherently dangerous and is not liable to fall on any one, therefore the doctrine of the assumption of risk does not obtain here for the servant never assumes the negligence of the master. Harris v. Williams Cooperage Co., 107 Mo.App. 249, 80 S.W. 924; Curtis v. McNair, 173 Mo. 270; Cothron v. The Cudahy Packing Co., 98 Mo.App. 343. (3) Dallas Austin acted as foreman in the presence of the master, directed the servants about what they should do, when and how they should do it, and therefore was not a fellow-servant of the appellant. Kelley v. Stewart, 93 Mo.App. 47; Foster v. Railroad, 115 Mo. 165; Miller v. Railroad, 109 Mo. 350; Brothers v. Cartter, 52 Mo. 372; Whalen v. Centenary Church, 62 Mo. 326; Stoddard v. Railroad, 65 Mo. 514; Lydon v. Manion, 3 Mo.App. 602; Gormly v. Vulcan Iron Works, 61 Mo. 492; Hutson v. Railroad, 50 Mo.App. 300; Dutzi v. Geisel, 23 Mo.App. 676; Hall v. St. Joseph Water Co., 48 Mo.App. 356. A foreman cannot divest himself of his responsibility by doing common work with those under him, and thereby enable his employer to escape liability for...