Stuba v. American Car & Foundry Co.

• Decision Date: 03 March 1925
• Docket Number: No. 18903.,18903.
• Citation: 270 S.W. 145
• Court: Missouri Court of Appeals
• Parties: STUBA v. AMERICAN CAR & FOUNDRY CO.

270 S.W. 145

STUBA v. AMERICAN CAR & FOUNDRY CO.

No. 18903.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

Rehearing Denied March 31, 1925.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Fred Stuba against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry, of St. Louis (G. A. Orth, of New York City, of counsel), for appellant.

Curlee & Hay, S. D. Flanagan, and Glen Mohler, all of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries, in which plaintiff recovered a verdict and judgment for $1,000, from which defendant has appealed. Plaintiff suffered an injury to his left hand from its being struck by a bolt while plaintiff was engaged in doing certain work in one of defendant's plants in the city of St. Louis.

The petition counts upon several grounds of negligence, but the case went to the jury upon one ground only, to wit, whether or not the defendant negligently failed to warn plaintiff of the presence of other workmen 20 feet above where plaintiff was working.

The answer is a general denial.

The errors complained of go to the giving and refusing of instructions, one of which comprehends the question as to whether plaintiff made a case for the jury. The cause was tried upon the evidence for plaintiff. The defendant offered no evidence whatever.

Plaintiff was a structural iron worker with many years of experience in that work. At the time of the injury, he and a fellow workman were engaged in placing iron columns in defendant's plant, and while plaintiff was in the pit at the base of such column, stooping over to adjust same, an iron bolt, called a machine bolt, three-quarters of an inch in diameter, five or six inches long, and weighing about three-quarters of a pound, fell from above, striking plaintiff's left hand and inflicting injury. Plaintiff introduced, besides his own, the testimony of fellow workmen, and the testimony of these witnesses agree in the main, differing slightly in some particulars, which we will afterwards not fail to point out.

In reciting the facts, we view the evidence, as we must, with its favorable inferences to support the verdict. It was shown that the plant of defendant where plaintiff was working at the time he was hurt was in the course of the interior construction. There were iron beams strung up near the roof of the building, which were to carry certain motors and machinery. There was no floor on the beams,: so that open spaces existed between same. There were different sets of workmen engaged in the plant, doing different character, of work, plaintiff and his fellow workmen placing the iron uprights; another group, called millwrights, working under a different foreman, were placing motors and fans on the iron beams some 20 feet above the floor where plaintiff was working. A footing, or platform, would be placed on the beams to support the motors and fans that were being installed by the millwrights.

Plaintiff testified that on this occasion he and several other structural iron workers were on the floor installing an upright beam, under the order of their foreman, one Harry Knowles, who was foreman for the structural iron workers only; that the foreman ordered plaintiff and his fellow workman, Mosner, to place wedges under the vertical column. Plaintiff says that while he knew there were millwrights working about the building, installing machinery and placing fans and ,motors, he did not observe any millwrights working above him before he was hit; that he had seen them working there several times, but not above him; that he would not work under anybody if he saw them working above him, or knew such fact. He testified that while he was stooping over adjusting the column, using a hammer, a heavy bolt, such as is described above, "came down and hit me on the hand while I was driving these wedges. It split my hand open" He said he had his hand dressed at defendant's emergency station, and afterwards had same treated for several weeks by his own physician; that the left hand was broken and lascerated, and that an infection set in, causing severe pain; that it was necessary afterwards to have the bone scraped, and that he required medical attention for five weeks; that the, hand was left with a lump on it; and that he was unable to perform any work over a period of six weeks.

Plaintiff testified further that there was no floor covering on the beams at that time, and that the millwrights would walk on the beams to carry out their work, and that the bolt that struck him was a machine bolt with a nut on it, and that such bolts were not used by him or his fellow workmen on the first floor, but were used in bolting down the machinery above; that he did not actually see the bolt fall from above, but that same fell with sufficient force to break his hand and cause the injury. He testified that as soon as he was hurt he looked up, saying on cross-examination: "I will say I am positive that I looked up."

Joseph Milner, as a witness for plaintiff, testified that he was working near plaintiff at the time he was injured; that as soon as he heard plaintiff exclaim after the bolt struck him, he looked up to see where the bolt could have come from; that he saw some men working "right over the point where Mr. Stuba was working"; that these men were installing a motor; and that the millwrights in doing that kind of work generally used a machine bolt, stating positively that "they were using machine bolts at the time; the fellows working up over us." He also stated that plaintiff and the other workmen around him on the floor did not use any bolts whatever; that there was no obstruction between plaintiff and the men working above him, except the beams upon which the millwrights themselves were working. On cross-examination, this witness again stated that the millwrights were right directly over where plaintiff was at work, and that they had to pass right over this column "to where they were going with the motor." When asked by defendant's counsel if he knew where the bolt came from, he answered that it came from above; " "it could not have come up from the floor." He was also permitted to testify that neither he nor the plaintiff were ever warned about the men working above them; that he knew the men were working about the place; but that neither he nor the plaintiff were told that anybody was going to work directly over them.

Plaintiff's witness Mosner testified that he was working immediately with plaintiff at the time of the injury; that at that time the millwrights were working above, about 15 feet out of the direct line of plaintiff; that neither he nor, plaintiff received any warning of any kind that men were working above them; that he did not actually see the bolt fall, though he was only about 2 feet from plaintiff when he was injured, but that he was sure "the men would not throw the bolt and try to kill somebody." He was allowed to testify to his conclusion that the bolt could have fallen from the beams because of vibration.

Al Bachman, also a witness for plaintiff, testified that he looked up immediately after the bolt struck plaintiff's hand, and that he saw the millwrights a few feet away from there; that he did not know how the bolt was caused to fall, unless some of the millwrights kicked same and caused it to fall down. He stated that the millwrights may have been over plaintiff when the bolt fell and had walked away in the meantime. Witness testified that the millwrights used bolts such as struck plaintiff, but that neither he nor witness Milner were using any bolts at the time; that plaintiff himself was using a hammer to drive a wedge under a column. On cross-examination, this witness was asked If he knew where the bolt came from, and he answered; "It surely must have dropped from above."

The other evidence adduced by plaintiff was expert medical testimony, about which no question arises.

The first complaint is addressed to plaintiffs main instruction, which was modified by the court and given. Because of the multitudinary objections made against this instruction, it is expedient to set same out in full:

"You are instructed that if 'you believe from the evidence that on or about the 1st day of September, 1922, plaintiff was in the employ of defendant as an iron worker at a place in defendant's said plant, and if you further believe from the evidence...