Stewart v. Laclede Gas Light Co.

• Decision Date: 14 March 1922
• Citation: 241 S.W. 909
• Parties: STEWART v. LACLEDE GAS LIGHT CO.
• Court: Missouri Supreme Court

241 S.W. 909

STEWART v. LACLEDE GAS LIGHT CO.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Opinion Modified and Motion for Rehearing Overruled April 8, 1922.

Motion to Transfer to Court en Banc Overruled June 2, 1922.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Oscar J. Stewart, executor of the estate of Fannie Lacy, against the Laclede Gas Light Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Percy Werner, of St. Louis, for appellant.

Walter F. Stahlhuth and Safford & Marsalek, all of St. Louis, for respondent.

JAMES T. BLAIR, J.

Respondent is the executor of the estate of Fannie Lacy, who instituted this action to recover damages for the death of her husband, who was in appellant's employ and who was killed by falling into a coal pit, into which he was dumping coal from railroad cars in the prosecution of his work for appellant. There was a judgment of $10,000, and this appeal followed.

Appellant operates a gas plant and uses large quantities of coal. This is delivered to the plant in railroad cars. For its reception appellant had prepared a pit some thirty-odd feet long, from north to south, and 25 feet or more in width. The depth of this place was 20 to 25 feet. Its walls were of concrete and about one foot thick. The floor was also of concrete. A railroad track, supported by heavy iron beams set in the walls at each end, ran over the pit from north to south. There were no ties in this track, but the beams were held together by occasional iron rods. A car would be placed on the track and the coal discharged into the pit through trapdoors in the bottom of the car. These cars overhung the track, as is usual. The track was so placed that the east rail was about 5 feet, or a little more, distant from the east wall of the pit, and the west rail was a considerably greater distance from the west wall. On the west side of the pit a crane was operated by which the coal was removed from the pit. The trapdoors were in the bottoms of the cars, one toward each end from the center, and when one of these was opened the coal [a that end would run out into the pit. Sometimes it would all run out of the end in which the door was opened, and sometimes only part of it would do so, and it would be necessary to shovel out the rest. The traps were secured, when in place, by an appliance which is not described in detail, but the important element of which was a cogwheel, into the cogs of which a piece of metal called a "dog," or pawl, fitted and held the wheel firmly and prevented its turning and permitting the door to drop. This "dog" was in turn held against the cogwheel by a lug, as the witnesses term it, which fitted down upon the "dog" and prevented it from slipping out of the cogs and releasing the door. The first thing necessary to be done, when it was desired to open one of these trapdoors, was to raise the lug so that the "dog" might be disengaged from the cogs into which it fitted. It was usually necessary to raise the trapdoor a little in order to relieve the strain due to the weight of the coal on the door. This was done by turning the cogwheel, and in this process a ratchet wrench was used. Sometimes the lug and "dog" moved relatively easily and could be kicked out and the trap would open. When it was necessary to turn the cogwheel, the employé had to approach the side of the car and apply his wrench. In doing this he was compelled to lean over and extend his arms and apply considerable force to the wrench. He had to do this while standing on a support of some kind above the part of the pit between the car and the east wall of the pit. When the coal Was dry and was dumped, coal dust would rise so that one could hardly see. On the day Lacy was killed the coal was in dry condition, and in fact dust did rise in clouds. When the trapdoors were open the weight of the coal caused them to open suddenly and fly out to the side.

For 2 years at least, under the supervision of the foreman in charge and with the knowledge of the superintendent, the means provided and used for the purpose of enabling the employé who opened trapdoors to approach the cars was a plank one foot in width and one or two inches thick. Butler, who worked with Lacy in dumping the cars, had been doing this work for nine months, and had always used a single plank extending from the wall of the pit to the east rail of the track over the pit. This method of work was known to the officials in charge. When Lacy was employed, probably less than a month before his death, Butler was ordered to teach him how to dump cars, and did so. This instruction by Butler is all the instruction Lacy had upon the subject. The plank in use when Lacy was killed was old and worn, but it does not appear that it was not level in surface. The pit foreman had asked the superintendent for—

"good boards for there, and said he would get me some; told me there were some good ones over the river, and I went down to the river bank and got one. Q. What did Mr. Schroeder say to you when you asked him for some good boards to be used? A. He would have some. I should go over the river; there were some goods ones there; and I went over and got one. Q. Did you get a good board? A. The best we bad there."

It was a part of the work of the men who dumped cars to put the board in place when it was needed.

There was no eyewitness to Lacy's fall. The foreman testified that a few minutes before Lacy had told him he was going to dump the car. He had the ratchet wrench in his :land at the time. The noise of the coal running out of the car was heard, and clouds of coal dust were seen to rise. Subsequently Lacy was missed. After a while the crane was put to work and after the first bucket of coal was taken from the pit Lacy's foot was seen to be uncovered. He was dead. His body was directly beneath the place he would have had to occupy in order to dump the car. It was entirely covered by coal which had run from the car. The ratchet wrench was found near the body.

The assignments of error are that: (1) There "is no substantial evidence of negligence on the part of" appellant; (2) that the court erred (a) in giving certain instructions asked by respondent, and (b) in refusing instructions requested by appellant; and (3) that the verdict is excessive.

I. In determining the question raised by the first assignment it is necessary to keep in mind the usual rule that respondent is entitled to every favorable inference of fact which the evidence warrants, and that countervailing inferences are to be rejected. Troll v. Drayage Co., 254 Mo. loc. cit. 337, 162 S. W. 185; Scherer v. Bryant, 273 Mo. loc. cit. 602, 201 S. W. 900.

II. The simple tool cases are not applicable. The plank in this case was a part of Lacy's working place. It was provided by appellant, and Lacy was, by appellant's order, taught to use it as he did use it in doing the work in hand. Reffitt v. Sheet & Tin Plate Co., 170 Ky. loc. cit. 368, 186 S. W. 494; Morey v. Lehigh Valley Railroad, 175; App. Div. loc. cit. 757, 162 N. Y. Supp. 434.

III. There can be no doubt that the dumping of these cars while standing on a plank a foot wide over a pit 25 feet deep, when the force necessary to be used and the obscuring of the vision by coal dust and the facts that the employés hands would be engaged with Abe wrench and his body would have to assume a decidedly stooping posture, and that the doors would suddenly fly back when released are all considered, was attended by danger. It is quite obvious that simple precautions might have been taken which would have obviated the danger of an employé falling while at this work. A banister or railing could have been constructed which would in no way have interfered with the work if a slightly wider platform had been used or a wider support in itself would have greatly minimized the danger. In Henderson v. Mfg. Co. (Mo. App.) 197 S. W. loc. cit. 180, this question is discussed, and the following is quoted from Mather v. Rillston, 156 U. S. loc. cit. 398, 399, 15 Sup. Ct. 467 (39 L. Ed. 464):

"All occupations producing articles or works of necessity, utility, or convenience may undoubtedly be carried on, and competent persons, familiar with the business and having sufficient skill therein, may properly be employed upon them, but in such cases where the occupation is attended with danger to life, body, or limb it is incumbent on the promoters thereof and the employers of others thereon to take all reasonable and needed precautions to secure safety to the persons engaged in their prosecution, and for any negligence in this respect from which injury follows to the persons engaged, the promoters or employers may be held responsible and mulcted to the extent of the injury inflicted. * * * If an occupation attended with danger can be prosecuted by proper precautions without fatal results, such precautions must be taken by the promoters of the pursuit or employers of laborers thereon. Liability for injuries following a disregard of such precautions will otherwise be incurred, and this fact should not be lost sight of."

The same principle was approved in Curtis v. McNair, 173 Mo. loc. cit. 283, 73 S. W. 167, Bowen v. Railway, 95 Mo. loc. cit. 275, 8 S. W. 230, Kuhn v. Lusk, 281 Mo. 324, 219 S. W. 638, and in numerous other decisions of this court. There are like holdings elsewhere. Dailey v. Swift & Co., 86 Vt. loc. cit. 200, 84 Atl. 603; West v. Tanning Co., 154 N. C. loc. cit. 49, 69 S. E. 687; Benenson v. Swift & Co., 127 Minn. loc. cit. 434, 149 N. W. 668; Schultz v. Ericsson Co., 264 Ill. loc. cit. 167, 106 N. E. 236; Kozowski v. Ostrowski, 163 Ill. App. loc. cit. 202; Railway v. Heney (C. C. A.) 211 Fed. loc. cit. 462; Denchfield v. Railway, 114 Minn. loc. cit. 61, 130 N. W. 551; Storey v. J. C. Mardis Co., 186 Iowa, 809, 173 N. W. 115; Probst v. Box Co., 200 Mo. App. 568, 207 S. W. 891; Donohue v. Lumber Co., 224 N. Y. 149, 120 N. E. 117; ...