Spencer v. Quincy, O. & K. C. R. Co.

Decision Date25 June 1927
Docket NumberNo. 25999.,25999.
PartiesSPENCER v. QUINCY, O. & K. C. R. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action under the federal Employers' Liability Act by Emmett Spencer against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition plaintiff enters remittitur; otherwise reversed and remanded.

J. G. Trimble, of St. Joseph, and S. L. Sheetz and H. J. Nelson, both of Chillicothe, for appellant.

Davis & Ashby, of Chillicothe, and Hubbell Bros., of Trenton, for respondent.

RAGLAND, J.

Action under the federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-5665), for personal injuries alleged to have been caused by defendant's negligence. The injuries complained of were received on August 10, 1923, near Reger, Sullivan county, Mo., while plaintiff, pursuant to his employment by defendant, was working as a bridge carpenter. For a statement of the facts which disclose the circumstances under which, and the manner in which, the injuries were received, we adopt that of appellant (defendant), in part, as follows:

"Plaintiff was one of a gang of about seven men, working under Foreman Cowan, who had reconstructed a wooden pile trestle in defendant's track where it crossed a small stream. They had been at work on the job two or three weeks. The new bridge had been practically completed, and during the work the old timbers had been torn' loose and allowed to fall under the bridge, and the old piling had been cut off or sawed off at or about the ground level, and allowed to fall where they would, and the work undertaken on the day of the accident, and a short time before the accident, was the removal of said old piling and timbers from under the bridge to a point at right angles to the track and about 50 feet therefrom, where they were being piled in such way as that they could be lifted up and loaded by a derrick on cars standing on or near the bridge, on some other day, by a different crew. To facilitate said loading of the timbers, they were being piled crosswise on `ways' timbers 4 inches thick by 10 inches wide which had been used as sway braces in the old bridge, having been selected as the most available timbers for `ways,' and two of said timbers were used as `ways' for each pile of piling, said timbers having been laid broadside down on the ground. Immediately previous to the commencement of the pile on which plaintiff was injured, plaintiff, with three helpers, had made a pile of piling on similar skids on the south side of the creek, about the same distance east of the track, and upon completion thereof they were directed by the foreman to make a similar pile of piling on similar `ways' on the north side of the creek. The particular timber used for a `way' and by which plaintiff was later injured was put in place by plaintiff, and after being first so placed by plaintiff, the foreman instructed him to block up one end, and he did so. Plaintiff, with another bridge carpenter working opposite him, and two other helpers, started in to make said pile of piling on the north side of the creek, and brought one pile from under the bridge and placed it on the `ways,' and had brought another pile up to and were in the act of placing it upon the `ways' when the injury to plaintiff occurred. For the handling of the pile, the men were provided with a tool known as a `lug hook,' and had two of them, two men being assigned to each lug hook. The lug hook consists of a stout wooden handle or shaft, about 5 feet long, with a grab hook attached in the middle, constructed of iron, to operate on the same principle as the ordinary ice tongs, so that when the horizontal points of the tongs were inserted into the wood of the piles, and force was applied to the handle of the lug hook by lifting up on it, the weight of the pile would keep the points of the hook engaged and tend to drive them deeper into the wood. In the use of the hooks, one man would be at each end of the handle, thereby placing one man on each side of the pile, and they were moving the piles from under the bridge to the `ways' by a method known as `lancing.' The four men with their two lug hooks had attached the lug hooks near the heavy or butt end of the pile. The two helpers (bridge gang laborers) were handling the lug hook that was attached nearest the east or forward end of the pile, and plaintiff and the other bridge carpenter were handling the second lug hook, which they had affixed to the pile such distance behind the forward lug as they deemed proper. The method of handling the pile consisted in all four of the men lifting on the two lug hooks at the same time, and swinging the piling as far eastward or forward as they could, while retaining hold of the lug hooks, their feet remaining in the position occupied when the pile was thus lifted. The men would then change the position of their feet forward without releasing the hold of the lug hooks, and lift up and swing forward again. By this method, the movement of the pile in question had proceeded to the point where the easterly or forward end had been moved far enough east to rest on the westerly `way,' and all four of the men were between the two `ways' when they made the movement of the pile by which plaintiff was injured. Plaintiff was standing just inside of and near the westerly `way,' and on the north side of the piling, facing the other bridge carpenter who was opposite him on the south side. They all lifted at the customary signal, and shoved or threw the pile forward, when the pile caught upon the westerly `way' and carried the `way' with it far enough east to strike plaintiff's right leg, thereby injuring it."

The ravine crossed by the bridge trestle was about 32 feet in width at the bottom. Along this bottom and following its meanderings a narrow water channel threaded its way. Between it and the sloping ground on the north side there was a level strip varying in width from 6 to 8 feet. It was along this narrow way that the piling had to be "lanced" from under the bridge a distance of about 50 feet to where they were being piled on the cross timbers. The ground was wet and muddy, covered with small rocks, blocks, and other debris from the recent bridge construction. The piles to be moved were round timbers, varying in length from 12 to 26 feet and weighing from 500 to 1,000 pounds. The one being "lanced" at the time plaintiff was hurt was between 15 and 16 feet in length, weighing from 500 to 600 pounds, and was wet and slick and mud-covered in part. The lower or butt end was rotten to a considerable depth from the surface. A portion of this decayed surface fell off while it was being "lanced," exposing a protruding knot. When the piling was swung forward in the act of "lancing" it, the rough surface (caused by the falling off of the decayed part or the protrusion of the knot) engaged the "way" or cross timber and jerked it with great violence against plaintiff's right leg just above the ankle. The nature and extent of the injuries thereby inflicted will be described later on.

Plaintiff called as witnesses five men who had had many years' experience in building' and rebuilding railroad trestle bridges, including the removal of old piling under circumstances more or less similar to those involved in this case. Some of them had done such work for only one railroad: others had at different times been employed in the bridge department of several railroads. A considerable period of time had elapsed since any of them were so engaged. On answer to a hypothetical question which accurately set forth the surrounding conditions as shown by the evidence, each gave it as his opinion that the "lancing" method of removing piling under those conditions was not a reasonably safe one. For example, Winter said:

"Because those lug hooks are not a safe piece of machinery to grab pile with. I noticed here yesterday in the courtroom—probably you observed it—where those men picked up that pile, and this lug hook broke its hold, and they will absolutely do it every time you grab into a round pile with them. If you have a timber, a square timber, they will hold reasonably well then, but they are not safe then. They will pull out, and probably the next man behind you, well, he will grab the whole load, and that will break him down. The man ahead of him has to hold it or they will roll on your legs and cripple you; flop around like a chicken with its head cut off. That is my theory; that is the reason why I say that they won't do it."

And Ford said:

"In case they let loose it might slide over and catch their feet. And then in piling, putting those pieces down there, and taking and dragging these big timbers over there, of course you are liable to pull them onto you at any time, unless they are fastened."

In connection with their reasons for saying that the "lancing" method was not a safe one, these witnesses described other methods which they regarded as safe. One method was to drag the piling with a team of horses; others involved the use of a mechanical appliance, such as the derrick. These methods they said were not only safe but more expeditious and economical than that of "lancing."

Plaintiff, after serving an apprenticeship of three months, was promoted by the defendant to the position of bridge carpenter. He was what is called a "top man," and had worked as such for three years prior to his injury. With respect to his knowledge of the danger of moving piling by "lancing" them, he testified:

"Why, I had never moved any pile of that length. I didn't know but it was all right to move them in that way. I didn't see no danger in it, didn't see anything wrong with it, and I didn't have any more knowledge of it than that. I trusted to the foreman's judgment, as...

To continue reading

Request your trial
54 cases
  • State v. Warren
    • United States
    • Missouri Supreme Court
    • November 25, 1930
    ...portion of the evidence, it invades the province of the jury and dwarfs the importance of the testimony of the experts. Spencer v. Railroad Co., 317 Mo. 492, 297 S.W. 357; High v. Railroad Co., 318 Mo. 444, 300 S.W. 1105; Breeze v. Railroad Co., 4 S.W. (2d) Stratton Shartel, Attorney-Genera......
  • Kimberling v. Wabash Ry. Co.
    • United States
    • Missouri Supreme Court
    • July 30, 1935
    ...is not excessive. Evens v. Term. Railroad Assn., 69 S.W. (2d) 929; Davis v. Buck's Stove & Range Co., 49 S.W. (2d) 47; Spencer v. Ry. Co., 297 S.W. 353; Margulis v. Natl. Enameling & Stamping Co., 23 S.W. (2d) FRANK, J. Action under Federal Employers' Liability Act (45 U.S.C.A., Secs. 51-59......
  • Scanlon v. Kansas City
    • United States
    • Missouri Supreme Court
    • May 15, 1930
    ...and comments on the testimony of the expert witnesses. Andrew v. Linebaugh, 260 Mo. 623; Wiegmann v. Wiegmann, 261 S.W. 758; Spencer v. Railroad Co., 297 S.W. 353. Madden, Freeman & Madden for defendant in error. (1) Plaintiff's cause of action for loss of services was not barred by the jud......
  • Hiatt v. Wabash Ry. Co.
    • United States
    • Missouri Supreme Court
    • February 23, 1934
    ...Co., 290 Mo. 344, 235 S.W. 91; Reagan v. People's Motorbus Co., 35 S.W. (2d) 945. (5) The verdict is not excessive. Spencer v. Railroad Co., 317 Mo. 492, 297 S.W. 353; Manley v. Wells, 292 S.W. 67; Snyder v. Am. Car & Foundry Co., 14 S.W. (2d) 603; Jordan v. Ry. Co., 308 Mo. 31, 271 S.W. 99......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT