Sustar v. Bambrick Bros. Const. Co.

• Decision Date: 31 December 1913
• Citation: 179 Mo. App. 495,162 S.W. 730
• Parties: SUSTAR v. BAMBRICK BROS. CONST. CO.
• Court: Missouri Court of Appeals

162 S.W. 730

179 Mo. App. 495

SUSTAR v. BAMBRICK BROS. CONST. CO.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

Rehearing Denied January 20, 1914.

1. MASTER AND SERVANT (§ 168)—INJURIES TO SERVANT—FELLOW SERVANT—EMPLOYMENT OF SERVANT.

In order to cast liability on a master for the act of a fellow servant causing injury to plaintiff on the ground of incompetency, the general rule is that it must appear that the negligent servant was habitually incompetent or negligent, and that such habitual incompetency was known to defendant or by ordinary care could have been known to him, and that the master, after having such actual or constructive knowledge, retained the incompetent or negligent servant in his employ.

2. MASTER AND SERVANT (§ 287)—INJURIES TO SERVANT—INCOMPETENCY OF FELLOW SERVANT—KNOWLEDGE—QUESTION FOR JURY.

In an action for injuries to a servant working in a sewer trench by the alleged negligence of the signalman in charge of the sewer machine in failing to see that the buckets were hoisted to a sufficient height to clear the crossbeams of the machinery, by which one of them was dumped and the stone precipitated on plaintiff below, evidence held to require submission to the jury of the question of the incompetency of the signalman and the master's negligence in keeping him in such a position with knowledge of his incompetency.

3. MASTER AND SERVANT (§ 294)—TRIAL (§ 191)—INJURIES TO SERVANT—INSTRUCTIONS.

In an action for injuries to a servant by the dumping of a sewer machine bucket, caused by the negligence of the signalman in failing to raise it high enough to clear a crossbeam of the machine, an instruction that if defendant negligently employed and retained an incompetent and unskilled signalman who was not reasonably fit to perform his duties, and because of such incompetency he caused the carriage to be started and moved along the track while one of the buckets was hanging so low that it struck a crossbeam and was caused to tip and spill a rock on plaintiff, and defendant knew, or by ordinary care would have known, the unfitness of the signalman and the danger by reason thereof, the verdict should be for plaintiff was not objectionable either on the ground that the jury were not required to find that the signalman actually signaled the engineer to start the carriage when the buckets had not been sufficiently raised, nor as assuming that the signalman was incompetent.

4. MASTER AND SERVANT (§ 293)—INSTRUCTIONS —CONSTRUCTION.

In an action for injuries to a servant by the dumping of a sewer machine bucket, due to the alleged negligence of the signalman, the court charged that if defendant operated a carriage on a track extending along the top of the sewer, and large buckets were conveyed along the track by means of cables over the place where plaintiff was required to stand, and the buckets, "while so customarily operated," were hanging so low that they came in

contact with a crossbeam, and one of the buckets was tipped and a rock spilled out and struck plaintiff, and defendant adopted a plan which was not reasonably safe in that the buckets were likely to tilt and swing and strike the crossbeam and to spill their contents, and defendant knew, or by ordinary care should have known, that the plan was not reasonably safe, and such negligence, if any, directly caused the injury, plaintiff could recover. Held, that the words "while so customarily operated" should not be construed to mean that the jury should find that the customary or normal way of handling the carriage and buckets adopted by defendant was to move the carriage when the buckets were so low that they came in contact with the crossbeams, but the instruction meant that the jury should find that the buckets "on the occasion in question" were hanging so low that they came in contact with the beams; the words "while so customarily operated" being treated as referring to the general method of handling the buckets previously stated.

5. MASTER AND SERVANT (§ 137)—INJURIES TO SERVANT—APPLIANCES—OPERATION—DEFECTIVE PLAN.

A sewer machine as arranged afforded a clearance between the buckets and crossbeams of only a foot or 14 inches. While operated by the regular signalman, the buckets were ordinarily stopped only from four to six inches above the crossbeams, and, while they were ascending rapidly, it was necessary for the signalman to cause them to be stopped and caught by a ratchet arrangement before they ascended high enough to forcibly strike or interfere with the machinery above, and it also appeared that, if one of the dogs of the ratchet missed a tooth, the bucket would drop back eight inches. Held, that the plan of operating the machine was not a reasonably safe one, so far as affected other employés working in the trench under the buckets.

6. MASTER AND SERVANT (§ 270)—INJURIES TO SERVANT—SEWER MACHINE—OPERATION —INSTRUCTIONS.

Where, in an action for injuries to a servant by the premature dumping of a sewer machine bucket, plaintiff charged negligence, not in using a machine of that type, but in that the machinery was negligently arranged and placed, in that, as the parts were then correlated and operated, the space between the bottoms of the buckets was too small for the safe operation of the machine, and that this was the cause of the injury, the fact that the machine was of standard type and such as was generally used in sewer work was not material.

Reynolds, P. J., dissenting.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Antony Sustar against the Bambrick Bros. Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

T. J. Rowe and Seddon & Holland, all of St. Louis, for appellant. Hall & Dame, of St. Louis, for respondent.

ALLEN, J.

This is an action by plaintiff to recover for personal injuries received by him while engaged as a servant of defendant, alleged to have been sustained through the negligence of the latter. Plaintiff recovered, and the defendant prosecutes the appeal.

On July 24, 1911, plaintiff was in the employ of defendant, assisting in the construction of a certain sewer in the city of St. Louis. At the time of his injury he was working in a trench which was being dug by means of the operation of what is known as a sewer machine. The latter consisted of a certain "carriage" carrying buckets and was operated upon wheels along an elevated track extending along and above the top of the sewer, some 15 feet or more above plaintiff. This track was supported by a sort of trestle, which stood upon timbers laid across the sewer. The trestle and track extended for some distance along the sewer; and the trench was dug by filling large buckets therein, which were hoisted and conveyed by the carriage along the elevated track and dumped. The rails of the elevated track were held in place by certain crossbeams; the upper edges thereof being a little lower than the tops of the rails, in order that the flanges of the wheels of the carriage would not strike them.

On the day plaintiff received his injuries he was working at certain concrete work which was being placed in a portion of the sewer which had been dug. The trench was being dug ahead of him, and the buckets containing the material hoisted therefrom were being carried along, from time to time, by the carriage directly over the place where plaintiff was working. Upon the occasion in question the bottom of one of these buckets, containing a large rock weighing, it is said, some 80 or 90 pounds, was permitted to strike one of the crossbeams of the elevated track, causing this rock to fall from the bucket, and which, after striking one of the crossbeams, fell upon plaintiff while engaged in his work below, striking him upon the head and inflicting very serious and permanent injuries.

To an understanding of the assignments of negligence upon which the case was tried, some further explanation of the operation of the sewer machine is necessary. The carriage was operated along the elevated track, and the buckets were raised and lowered, by an engine situated some distance down the track, and which performed both of these operations by means of cables running therefrom to the carriage. A signalman stood upon the platform of the carriage and gave signals to the engineer with respect to the hoisting of the buckets, the stopping of the same at the proper height, and the operation of the carriage along the track. When the buckets were filled in the trench below, a signal was given to the engineer to raise them. When they had been raised to the proper height, it was the duty of the signalman to signal the engineer in order to stop their upward movement. It seems that there was a ratchet arrangement provided, to prevent the buckets from being raised too high and likewise from falling back after they had been elevated. After the signalman had signaled the engineer to check the upward movement of the buckets, it was the duty of the former to throw a lever to cause what is called the "dogs" to catch in the teeth of the ratchet wheels to prevent the buckets from ascending higher or from falling back. Then it was his duty to signal the engineer to release a certain brake and convey the carriage along the track in order to dump the buckets.

There was expert testimony to the effect that the total possible clearance that could be arranged to be had between the bottom of the buckets and the crossbeams was something like two feet, though there was testimony that, as this particular machine was then "rigged up" and operated, the largest possible clearance was a foot or 14 inches. It appears that each of these large buckets had a bail, to which was welded a strip of iron with a hole in it to receive a hook which was fastened to the cable. It seems that defendant was using eight of these buckets, of almost exactly the same size; two of them being hoisted or lowered at a time, and the others being down in the trench to be...