St. Louis, I. M. & S. Ry. Co. v. Baker

• Decision Date: 03 July 1911
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BAKER.
• Court: Arkansas Supreme Court

140 S.W. 14

ST. LOUIS, I. M. & S. RY. CO. v. BAKER.

Supreme Court of Arkansas.

July 3, 1911.

Appeal from Circuit Court, Saline County; W. H. Evans, Judge.

Action by Mrs. Vance Baker, administratrix, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded for new trial.

This is a suit brought by appellee against appellant to recover damages on account of fatal injuries received by G. E. Baker while working in the boiler shop of appellant in the city of Argenta. Baker was employed by appellant as a carpenter, and, in company with a fellow workman named Vernon, was sent to make some repairs on the windows of the boiler shop. The boiler shop is a high room, with a row of windows around it 22 feet from the ground. There are two electric cranes in the shop, a large one in a larger room of the shop and a small one in a smaller room, separated by a row of pillars. The larger crane is used for picking up and carrying heavy boilers and machinery. The smaller crane was used for picking up smaller machinery. It consists of a heavy beam running across the room and resting at each end on trucks, which run upon a track about two feet below the row of windows above referred to. Suspended from the beam are hooks and other appliances used for taking hold of large sheets of boiler iron and other things which the workmen in the shop may desire to have moved for them from one machine to the other. The crane is so arranged that, when the load is thus attached, it is left clear of the heads of the men on the floor, and carried and deposited wherever desired by the workmen. The crane operator sits in a cage about 15 feet from the floor at one end of the room, and controls the movements of the crane and the hooks by means of levers. Baker and Vernon had been engaged for some time about various other buildings of the shops and about this building making repairs to doors and windows wherever needed. They were under a foreman named Waits, who gave them instructions from time to time to do necessary work of repairing the building, such as windows, doors, etc. On the forenoon of the day Baker was injured, at about 11 o'clock, they went up to the boiler shop to examine the windows with a view to repairing any defects that might be discovered. They examined the windows from the ground below, and saw that the sill of one near the middle needed repairs. They went up on the outside of the building to the window, examined the defects, and determined what material they would need to make the repairs. They placed their order for the mill work and went away. Along in the afternoon, between 3 and 4 o'clock, they returned to do the work. They approached the boiler shop from the side where their ladder was set up and went up to the window. While there they decided that it would be necessary for them to get up on the crane tracks in order to do the work. They did not at any time notify any one, the crane operator or any one else connected with the company or the management of the crane, that they were going to do the work in this manner. They went out on the track and began to work on the window sash, which was hung on a pivot, and had to be removed in order to make the repairs. They passed a rope around it, to keep it from falling when they knocked out the pivots. While so doing, the crane trucks were moved towards them by the crane operator. They were not observing the movement of the trucks nor was the crane operator observing them, so the trucks came in contact with them, and so injured Baker that he shortly afterwards died.

This suit was brought by Mrs. Baker, his wife, as administratrix, for damages to his estate and the next of kin. The negligence charged in the complaint is that the servants and employés of defendant "operating and in charge of said crane, without warning of any kind, recklessly, negligently, and carelessly ran said crane to the place where said intestate was working and against said intestate with such force and violence as to jam him against the brick wall of said building that supported the window frames; that it did not furnish her intestate with a safe place to work; that it failed to keep a lookout for him; that it did not have its crane properly equipped with a signal gong to warn persons in danger of the approach of said crane." The defendant answered, denying the allegations of the complaint, and set up affirmatively the defenses of assumed risks and contributory negligence.

Vernon, who was working with Baker at the time of his injury, testified substantially as follows: "I began work in the bridge and building department on April 4, 1909, and worked until the 1st day of July, 1909. Mr. Waits was my foreman. Up to the time of the injury I had been doing repair work around the shop and building new doors and new windows. The first work I did was on the machine shop door. We had various kinds of work. We were taken away from one job and put on another, and on two different occasions I went across the river and worked in East Little Rock. We did work on the bunk cars. We did work wherever they thought it was necessary for us to work. I got instructions to do all the work that was necessary on the doors and windows; all those that were too far decayed to be repaired to build new ones. The only further instructions that we had were that the work had to be done mechanically. When I went out to do a piece of work, I used my own ideas as to how it was to be done. We had been working on the front end of the door to the boiler shop several days. On two different occasions, in hoisting the big doors, we had occasion to go up on the inside and fasten to them so we could pull them up. While we were working there, they were using the big crane hoisting a heavy reservoir off the frame, and it was necessary that we should give way to them in bringing one of the big tanks near the door. The tank was being handled by the crane. They rang the gong. We took notice from that that they were going to move the crane and got down out of the way. I have worked in the machine shop, where I had to take notice of the crane and get down out of the way of it. We built some windows there. We went up there and got the measurements through some openings where the sashes were gone and manufactured new sashes and put them in. We went up from the inside of the building, and had to use the same ladder that the craneman uses in going up and down. In doing this work he would hold the crane there until we got down out of the way. That was in the machine shop. I have been there and have been where I was in danger if that crane had come without giving the alarm, but he always gave the alarm and I got out of the way when there was any danger. I didn't, at the times I was working there, give them any specific notice that I was there. I depended on the sound of the gong to give me notice to get out of the way. I think it was in the neighborhood of 11 o'clock in the morning when we started to repair these small windows in the boiler shop. We went over the doors on the front end of the building, after we had finished them up, and then came to the windows. We were on the inside of the building. We got a ladder that we used on the door of the front of the building, and carried it to the side where the window was to be repaired. We set the ladder on the outside, and then carried the tools up to the window, and piled them on the wall on the bottom of the window. Mr. Baker and I consulted with each other as to doing this job, and as to how it could be done. Mr. Baker was with me part of the time when I was around at other places where they had gongs on the cranes. He had not worked with me on that part of the building before that. The only places he had worked with me before that were where other cranes were operated with gongs. We couldn't put in the new piece without taking the whole window out. Then we conferred with each other as to how to take it out. We couldn't take it out from the outside. All the windows are put in from the inside, and the way that they were constructed it was necessary to go on the inside to remove them. I was listening for the crane. We had not been there but for a very short time before the accident occurred, long enough to put the rope over the sash and get in a position to do the work. We had been there probably five minutes, when the crane came in contact with us and knocked Mr. Baker off. When we were working in the machine shop, on the top row of windows, the operator of the crane knew that we were there, and he watched out for us. He would sound his bell until he got our attention. He didn't move the crane while I was doing the work there. In doing this work in the boiler shop, the removing of the window, Mr. Waits told us to go to the boiler house and see what was necessary to be done, and for Mr. Baker and I to go and do it. Mr. Baker and I would find the places that needed repairing, and then we would adopt our own methods in doing the repair work we thought necessary to be done. The extent of the repair work was to be left to our discretion. We went ahead and used our own judgment. If it was necessary to build a scaffold to stand on, we didn't fail to build one any time we found it could be used. After we placed our ladder there I believe we went up before noon to see what was necessary to be done, and then prepared to do it. The only work we did there before noon was to get the dimensions of the materials we were going to use in the window. Between the time we inspected these windows and the time of the accident we had been doing a little piece of work in the bridge and building department. There was some other job we had to do before we went back over there. When little jobs came up to do, we did them. It was between 3 and 4 o'clock when we left the boiler shop to go to the bridge and building department. When we got back to those windows, Mr....