State v. Daues

• Decision Date: 15 November 1926
• Docket Number: No. 27045.,27045.
• Citation: 288 S.W. 13
• Court: Missouri Supreme Court
• Parties: STATE ex rel. AMERICAN CAR & FOUNDRY CO. v. DAUES et al., Judges, etc.

288 S.W. 13

STATE ex rel. AMERICAN CAR & FOUNDRY CO. v. DAUES et al., Judges, etc.

No. 27045.

Supreme Court of Missouri, Division No. 1.

November 15, 1926.

Certiorari to St. Louis Court of Appeals.

Certiorari by the State of Missouri, on the relation of the American Car & Foundry Company, to review an opinion and judgment (280 S. W. 60) of Hon. Charles H. Daues and others, Judges of the St. Louis Court of Appeals. Opinion and judgment, and portion of record containing it, quashed.

See, also, Harrison v. American Car & Foundry Co., 254 S. W. 559.

Watts & Gentry and Arnot L. Sheppard, both of St. Louis (G. A. Orth, of New York City, of counsel), for relator.

Moldafsky & Tennenbaum, of St. Louis, for respondents.

ATWOOD, J.

In compliance with our writ of certiorari, directed to the judges of the St. Louis Court of Appeals, there is before us the record in the case of Russell Harrison, Plaintiff, v. American Car & Foundry Co., Defendant, 280 S. W. 60. The facts are thus stated in respondents' opinion handed down in this case on February 2, 1926:

"It appears that, while plaintiff and three other persons were working under the direction of defendant's foreman, Frank Reid, in unloading billets from a car, the defendant's foreman directed them to drop a steel rail while they were in a space about 4½ feet wide and about 25 feet long. It appears that there was not sufficient room between these two piles of billets, where these laborers had started to erect another pile, to lay them down, and they were directed by the foreman to drop this rail, because of the insufficient room to lay it down. The rail which the four men were carrying was about 20 feet long and weighed about 700 pounds. The men were carrying this rail between the two piles of billets in order to make preparations for assembling another pile of billets. The south end of the rail, where two of the laborers were, was out in the driveway, and these two laborers had plenty of room to perform their work; but plaintiff and his colaborer on the north end of the rail did not have the room that the other two had. Plaintiff's colaborer changed from the opposite side to the same side where plaintiff was, and was then told by defendant's foreman to drop the rail. The rail struck another rail lying there, bounded, and caught plaintiff's foot. Plaintiff testified: 'When the rail hit my foot, my foot turned upside down, and my foot busted.' Plaintiff said there was not enough room to get out of the way."

The case originated before a justice of the peace in the city of St. Louis, and as to the pleadings there filed the opinion reads:

"The petition alleges that plaintiff was injured on the 13th day of August, 1920, while carrying a steel rail, and while in the act of throwing the said rail on the ground; the rail when thrown striking another rail, which caused the rail which was thrown to the ground to bound and strike plaintiff's foot. The negligence alleged is that defendant `failed to furnish this plaintiff with a reasonable and safe place to work in, to wit, that in and about the premises of this defendant were left lying on the ground other rails and iron and steel.' Plaintiff also alleges that defendant's foreman was guilty of negligence in directing the plaintiff and other employees, who were carrying the rail, to drop or throw the said rail upon and against another rail, when he knew, or by the exercise of ordinary care could have known, that it was likely to rebound and strike and injure the plaintiff."

From the foregoing it clearly appears that plaintiff did not content himself...