Szofran v. Century Elec. Co.
| Decision Date | 17 February 1953 |
| Docket Number | No. 28554,28554 |
| Citation | 255 S.W.2d 443 |
| Parties | SZOFRAN et al. v. CENTURY ELECTRIC CO. |
| Court | Missouri Court of Appeals |
Luke, Cunliff & Wilson, Chapman & Chapman and Wilton D. Chapman, St. Louis, for appellant.
Bartley & Bartley, Coburn, Storckman & Croft and Clem F. Storckman, St. Louis, for respondents.
HOUSER, Commissioner.
Action for damages for the wrongful death of Walter G. Szofran from injuries received when struck by a crane operated by an employee of Century Electric Company. From a judgment for $7,500 entered upon a jury verdict for the parents of decedent and against Century Electric Company, the defendant has appealed to this court on these grounds: (1) that respondents' evidence did not establish actionable negligence on the part of appellant; (2) that decedent was guilty of contributory negligence as a matter of law; (3) that respondents' rights and remedies are governed exclusively by the Workmen's Compensation Law; and (4) that appellant should have a new trial because of procedural errors.
The petition charged negligence in driving an overhead movable crane upon decedent while the latter was engaged in the erection of an iron girder near the crane tracks when defendant knew or should have known of decedent's position and danger, without warning him of the movement and approach of the crane.
The answer pleaded contributory negligence in that decedent knew or should have known of the approach of the crane in ample time to have gotten out of its way, and that decedent was a statutory employee of defendant under Sec. 3698, RSMo 1939.
The reply denied the allegations of contributory negligence, denied that decedent was a statutory employee of defendant, and alleged that the work being done by decedent's employer on defendant's premises was not an operation of the usual business of defendant, and that decedent's employer was an independent contractor.
The evidence favorable to respondents shows the following state of facts: Decedent Walter G. Szofran was a journeyman ironworker in the employ of Robinson Erection Company, which was engaged in structural iron work, including the erection of girders and beams. Decedent's employer had a contract with Century Electric Company to erect chutes, hoppers and support girders in its foundry building. That building was equipped and used for the purpose of making heavy castings by pouring molten iron into molds. To facilitate the lifting and movement of heavy materials and objects an overhead electrically driven movable crane, capable of carrying a 5-ton load, was used. The crane operated on parallel tracks which were located approximately 60 feet apart, mounted about 20 feet above the level of the foundry floor on horizontal 21 inch iron beams which ran east and west the length of the building. These crane track beams were attached to upright supporting columns spaced 20 feet apart. The crane itself consisted of two heavy parallel steel beams, which rested on trucks at each end. Two iron wheels similar to railroad car wheels, only smaller, carried the trucks. The wheels rolled on the tracks and enabled the crane to move from one end of the building to the other to pick up, carry and deposit loads as required. Attached to the underside of the south end of the crane was a cage in which the operator of the crane stood and manipulated the levers which controlled its movements. The crane was equipped with a warning bell operated mechanically by foot by which the operator could issue warnings of the movement of the crane. The maximum speed of the crane was that of an ordinary brisk walking gait of a man, approximately 3 miles per hour. The movement of the electric crane was 'pretty quiet.' There was other noise in the foundry.
The work in which Robinson Erection Company was engaged was that of attaching iron girders onto the north side of the north row of the supporting columns. Holes were drilled in the columns, in the beams and in lugs which were attached to the beams and columns. After the holes were drilled there were two operations: 'hanging the girder' (putting in enough bolts to carry the load), and 'tying the girder in' (putting the bolts in the holes and fastening the girder securely with lugs). On the day before the casualty the holes were drilled and the particular girder hung with enough bolts to hold its weight. On the day before the accident the drillers were on top of the crane runway engaged in drilling holes in the columns to hang the girders, working in such a position that they were directly in the path of the crane as it rolled on the tracks. On the day previous to the accident wooden blocks in the shape of a wedge had been placed on the rails to keep the crane from striking the men who were working on or close to the crane runway. They were placed there by Julius Toth, an employee of Robinson Erection Company. The crane hit the blocks two or three times on the day before the accident, before stopping. On the day of the accident the wooden blocks were not at the east end of the runway. The crane operator knew the runway was not blocked that day, and that there was no flagman on duty to warn the employees of Robinson Erection Company working on the crane runway. The person who required that the blocks be taken out was a general foreman of Century Electric Company. On the day of the accident, after the blocks were taken out, Toth and a co-employee called Possum, were drilling holes in the beams. They would step off the track when the crane came along and after the crane had passed would step back on the crane runway and continue with their work. Toth, on top of the rail, could see the operator in the cage except when the crane was 'straight out from him.' He could see the face, eyes and most of the body of the operator when 20 or 30 feet from the crane.
On the morning of the accident Szofran and his co-worker James M. Wheeler, after sorting out their lugs, went up for the purpose of tying in the girder. Wheeler was underneath the crane track beam sitting on a horizontal 6-inch pipe, about 16 feet above the foundry floor. Szofran was standing on a ladder. The operator of the crane was in his cage with his hands on the controls. The visibility of the operator across the width of the building was good. On could see clearly. Although smoke arose from the operation of pouring molten iron into the molds, that work at the time of the accident had temporarily stopped. There was nothing to prevent the operator from seeing Wheeler. From photographs taken at eye level in the crane cage, looking northeasterly to the crane track run, it is evident that the operator could have seen Szofran and Wheeler in the positions they occupied at the time of the casualty, long before the crane reached them. 'They were over the period of pouring and everything was kind of cleared up' but there were men on the foundry floor pushing, pulling, and moving things around. The crane operator was using the crane picking up objects and moving them from one place to another across the area where men were working. In addition to Szofran and Wheeler there were two other Robinson employees working on the crane runway approximately 40 feet west of the place of accident. Wheeler had to wait several minutes until the operator looked in his direction, then he caught his eye and gave the operator the signal by pointing to himself and to Szofran, indicating that Szofran would be working above on the beam and Wheeler below. The operator nodded his head. Wheeler then instructed Szofran to go on top. Szofran went on up after the operator nodded his head, then they started to bolt up, i. e., to put on the lugs or heavy angle irons which are bolted to the columns. Szofran was putting a bolt in from the top. In order to do this it was necessary to have the holes in the angle iron and the columns lined up (in apposition) so that the bolt would go through both holes. Wheeler was facing the column, making contact with the angle iron, reaching up. Wheeler had the lug up there, the bolt in the bottom hole, and was trying to hold it straight so that Szofran could put in the bolt from the top. Szofran was on the top of the girder, reaching down in the column, putting the bolt in. They were working in the space between the track girder and the girder which was being tied in. Although Wheeler did not see Szofran's position he must have been 'either laying or reaching down on the crane run or reaching over the girder.' After the operator nodded to Wheeler the crane had moved several times although Wheeler paid no attention to him after he went to work. Wheeler heard a groan from above, ducked out right away, leaned out and was looking over the outside. The crane, which had come from the west at a speed of about 3 miles per hour, backed up a few feet and Szofran dropped down into Wheeler's arms. Wheeler held him until help came. Deep gashes were cut in his head and behind each ear. Szofran's head had been crushed between the column and the track of the crane. All the evidence, including that of the crane operator, indicated that no warning of the approach or movement of the crane was given by the operator of the crane, although the operator testified that he had instructions that men were working 'up there' on the crane run west of the place of accident and that if he had looked 'very close' and if he knew men were working up there he could have seen them.
The first two points raised by appellant (the twin questions whether defendant was guilty of actionable negligence and whether decedent was guilty of contributory negligence as a matter of law) must be resolved against appellant.
From the facts which we have related the jury was entitled to find that a duty rested upon appellant's crane operator to maintain a lookout for Szofran and others working on and about the crane runway and to warn them of the...
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