Sissel v. Sherin

• Decision Date: 09 February 1925
• Docket Number: No.
• Citation: 268 S.W. 668
• Parties: SISSEL v. SHERIN et al.
• Court: Missouri Court of Appeals

268 S.W. 668

SISSEL v. SHERIN et al.

No.

Kansas City Court of Appeals. Missouri.

February 9, 1925.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Martin Sissel against John X. Sherin and another. Judgment for plaintiff, and defendants appeal. Affirmed.

McCune, Caldwell & Downing, of Kansas City, for appellants.

Clif Langsdale, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,000, and defendants have appealed. The only point raised by defendants is that their instruction in the nature of a demurrer to the evidence should have been given. There is no controversy as to the law applicable to the case. The difference between the parties arises from an inability to agree upon what facts are shown in the record. A fair statement of the evidence will dispose of the case.

The record discloses the following: Defendants were engaged in installing two large boilers in the basement of the Federal Reserve Bank Building in Kansas City when a chain being used broke and struck plaintiff. Four men were employed in the work, a foreman and three workmen, including plaintiff. On the day of plaintiff's injury and on the preceding day, these men had been working on a boiler in the lower part of which were located two holes or tubes about 4 feet in diameter. The work consisted in inserting a cylinder into each of the tubes of the same diameter as the tube. The cylinders were of hollow steel which was Wm of an inch thick. One of the cylinders had been placed in the tube on the preceding day. The cylinder that was being placed at the time of plaintiff's injury was about 5 feet long. It was to be inserted in the tube about 6 inches. Both the inside of the tube and the outside'of the cylinder were round where they were to come in contact with each other, but the tube had corrugations in it. Into the first corrugation, which was about 4 feet from the end, was fitted a 4x4 timber. Around this timber was tied a 1-inch rope, and into the rope were hooked two blocks or pulleys of a 1-ton chain block. The cylinder was placed in position before the tube and against the outside of the former were placed two boards, 2×8 and 2×10, respectively. A sling of rope was made around these boards. Into this sling was hooked a third block or pulley of the chain block. The cylinder was then moved into the tube by the three helpers situated on the outside of the tube, pulling on the chain running through the pulleys. One of the cylinders had been forced into the tube in this manner with these pulleys and the same chain on the day prior to plaintiff's injury. Some difficulty was then experienced because the cylinder was tight.

At the time of plaintiff's injury, the foreman was inside of the tube, where he was assisting in the operation of inserting the cylinder by tapping the cylinder with a sledge at times for the purpose of loosening it, thus aiding it in its progress into the tube. He had his back to the men, but he testified that he was watching the operation and the chain to see that it did not get twisted and that the apparatus was working properly; that he told the men when to pull the chain and when to desist. All of the men, including the foreman and plaintiff, had been doing this kind of work for a number of years with the same kind of apparatus that was used on this occasion and by the same method. The chain, or chain block, used was the same kind of chain block that is ordinarily used in this kind of work. There was no claim or evidence that the chain or chain block was defective; on the contrary, the evidence shows that the chain was practically new and in good condition.

Plaintiff testified: That the diameter of the tube and cylinder that he was working on at the time of his injury was the same. That they were intended to fit tight. That on this occasion the tube was going in very slowly— "it was almost too tight; it would not hardly go in." He and his two helpers had been pulling on the chain for 10 or 15 minutes when the chain broke. That at one time the cylinder was taken out and the edge offset by battering in the end of the cylinder a short distance back. On cross-examination he testified that he had been a boiler maker's helper for 12 or 13 years; that from time to time he had done work of a similar character to that he was doing when he was hurt, and that he did it in the same manner with the same kind of appliances; that the chain being used was from one-fourth to three-eighths of an inch in diameter; that in inserting the cylinder on the day before, it did not take them so long as it went in easier, although they had some trouble with it; that "in lots of other jobs" on which he had worked he had as much trouble getting the cylinder in as they did on this job; that he had never seen a chain break; that he had worked on jobs before where three men had pulled on the chain, "but I don't think I ever saw three men pull that heavy a load though." On redirect examination he testified that the foreman was watching "with reference to the strain that was put on it" (the chain); that on other jobs on which he had worked, where there was difficulty in getting the cylinder into the tube, "most generally it (the cylinder) would be taken out and set in (off-set) or made smaller a little."

The foreman testified that the cylinder was somewhat larger than the tube. He was asked if that was the "usual condition of cylinders and tubes," but the court sustained defendants' objection to this question. He further testified that he was having difficulty in getting the cylinder into the tube; that they had been pulling the cylinder into the tube approximately two hours before the chain broke; that it had gone in about 2 inches at that time; during that time the cylinder was offset with a sledge; that the cause of the cylinder's not going in was that it was larger and the rivets in the tube protruded a little in places when they should have been counter-sunk or flush with the surface of the tube; that in some places the rivets caused the cylinder to bind; that he was inside the cylinder, tapping it to make it go in easier. He was asked if he did not know that the chain would break if too great a strain was placed upon it. The court sustained defendants' objection to this question. He further testified that he did not file the rivets off before starting the cylinder in, but that he could have gone over the rivets and "cort them again." On cross-examination the foreman testified that some cylinders were welded, but usually they were riveted; that in fitting cylinders into tubes he was always confronted with the question of rivets; that he was inserting this cylinder into the tube in the customary way; that in his experience he had seen a great many of these cylinders that fitted tight; that the cylinder was supposed to fit tight, but that ordinarily the cylinder was as much smaller in diameter than the tube as the thickness of the metal of the cylinder, Fie of an inch; that sometimes the cylinder was three or four thicknesses smaller. He further testified that he had never seen a chain of the size, under the circumstances, break before; that in his judgment the chain was appropriate for the work. On redirect examination the foreman testified that he was the one to watch and see that the chain did not get twisted; that he "watched the cylinder, watched the chain-falls as they pulled on it, to keep that tube from twisting and to tap the cylinder"; that he had seen chains become twisted, and that at the time it broke he "had not seen it twisted." He, was asked whether the cylinder he was fitting at the time was larger in proportion to the tube than ordinarily was the case, but the court sustained defendants' objection to the question. Plaintiff's counsel thereupon offered to prove...