Tabor v. Kansas City Bolt & Nut Co.

• Decision Date: 02 March 1925
• Docket Number: No. 15279.,15279.
• Citation: 274 S.W. 911
• Parties: TABOR v. KANSAS CITY BOLT & NUT CO.
• Court: Missouri Court of Appeals

274 S.W. 911

TABOR v. KANSAS CITY BOLT & NUT CO.

No. 15279.

Kansas City Court of Appeals. Missouri.

March 2, 1925.

Certiorari Denied July 3, 1925.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Suit by John W. Tabor against the Kansas City Bolt & Nut Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Morrison, Nugent, Wylder & Berger, C. C. Byers, Jr., H. L. Hassler, and D. C. Johns, all of Kansas City, for appellant.

Gamble, Trusty & Pugh, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, an employé in defendant's iron foundary or manufacturing plant sustained an injury to his foot, and brought this suit for damages. He recovered a verdict and judgment of $5,000, which was later reduced by the court to $4,000, and motion for new trial was overruled. Defendant appealed.

Plaintiff's work was in defendant's "open hearth pit," so-called, perhaps, because it was in front of, and a few feet below, its row of furnaces from which iron or steel in a molten state flowed into molds and was formed into ingots, that were then disposed of as hereinafter shown.

The place was a large partially inclosed room or building 175 to 250 feet long, 50 to 75 feet wide, and 60 feet high. The ingots were in the form of truncated cones, 6 or 7 inches in diameter at one end, and tapering to 5 or 6 inches in diameter at the other; each being about 5½ feet long and weighing 1,200 or 1,500 pounds. As soon as the molten metal in the molds had hardened, the molds were removed, and the ingots were carried by a traveling crane, in two bundles of four ingots each, south to a point near the middle of the building, and there placed in a pile on the ground. The crane was a large four-cornered affair, traveling on rails running from east to west and from north to south through the middle of said room. This crane was operated by a man in a cab on the platform thereof which moved with the crane, and the latter was about 20 feet or more below the roof. Either two chains, or a chain having two forks or branches, hung down from the crane, each having a large hook on the end. When the molds were first removed from the ingots they would still be glowing with heat, and soon after would turn to a dark blue, but before they would become entirely cool each of the chains or forks thereof would be wrapped about four ingots, thus forming them into a bundle, and the hook on the end would then be placed around the part of the chain that went up to the crane. The latter would then lift the two bundles of four ingots each, and, moving along the overhead rails to the point where they were to be deposited would there stop and lower the bundles to the ground or to the pile of ingots already there, so that the suspending chain would slacken. Thereupon it was plaintiff's duty to take each hook off the chain so that the ingots would be released, the chain or chains could be drawn upward again, and the crane return for another load. The hooks would be taken off the chains by plaintiff with his hands; no other method or means of doing so being used or afforded. The ingots, when loosed, were not arranged in any order, but lay where they chanced to come to rest when released. The first load would lie on the ground, and as more were added they would form a pile, the cones lying "every which way," and the great weight of those added on top would cause the pile to settle or "creep" and shift their position. As the pile grew, plaintiff had to step up on it in order to reach and release the hooks on the chains.

Plaintiff was injured about 8:30 at night on October 28, 1922, and at the time of the injury there had been deposited in the way above indicated 50 or 55 ingots, which formed a pile covering a space about 8 or 10 feet square, and which was about 4 or 5 feet in height. The crane arrived overhead and lowered its customary load of two bundles to the "top of this pile, the sides of which were then gradual slopes. One of said bundles came on the east side of the top of the pile and the other on the west side. They were both on top of the pile, but one was near the east side and the other near the west side. A man could not ordinarily stand in one place and release the hooks on both chains, but would have to release one and then go around to the other side of the pile to release the other. When the bundles had been thus lowered at the time in question, plaintiff, from the east side of said pile, released the hook on that chain and then went around to the west side to release the other one. He stepped up on the side of the pile with his left foot and reached up to release the chain, when an ingot in the pile settled upon and across plaintiff's foot, resting on that part thereof extending from the juncture of the toes with the foot back over the top of the instep. The weight of the ingot was such that plaintiff could not withdraw his foot, and the heat of it began to burn his shoe and foot. He called for help, and, either in his efforts to get loose or after this foot was released, fell on his back with his head on the ground, face upward, and lay there for a few moments. A workman with a bar pried the ingot off his foot and released it.

The charge in the petition is as follows:

"Defendant was negligent, in that it negligently piled and stacked said ingots so that they were in such position and so interlaced so that an ingot would probably slip and fall from its position and injure a person going thereon, and yet the defendant negligently ordered the plaintiff to go upon said pile.

"Defendant was further negligent in that it was nighttime, and, although said ingots were stacked and piled so that they were interwoven in many positions, and some were not securely held and would likely slip, and they weighed about 1,200 pounds, and defendant required plaintiff to go upon the pile and loosen the chain, and said ingots were at a burning heat, yet defendant negligently failed to furnish plaintiff reasonably sufficient light, and said place was not lighted and was dark, and that by reason thereof it was not reasonably safe, and plaintiff did not have sufficient light to find his way with reasonable safety, and defendant knew, or by the exercise of ordinary care should have known, such facts and conditions and dangers.

"Defendant was further negligent in that, although said pile was in the condition above described, and was not sufficiently lighted, yet defendant failed to furnish plaintiff any appliances for unfastening said chain, and required plaintiff to go upon the pile and unfasten the chain, when the same could have been unfastened wtih a hook by a person standing upon the ground and reaching up with a hook and pulling the chain loose, and defendant knew, or by the exercise of ordinary care should have known, of said facts and dangers, but negligently failed to furnish plaintiff such a hook."

In the course of the trial, plaintiff attempted to testify that he was not provided with any means except his hands to unhook the chain, and that it could have been released by other means, but the court on objection excluded it, and also excluded plaintiff's offer to testify that, if a simple handbook had been provided, he could have released the chain without having to step upon the pile. There was no testimony that other methods of releasing the chain were in use or what the proper method was, nor any testimony that plaintiff was specifically ordered to step or climb on the pile, though that was the way the work was required to be done, and plaintiff said he was told to watch the ingots on top as they would be apt to slip.

Plaintiff embodied and submitted his case in one instruction, which, after telling the jury that it was the duty of a master to exercise reasonable care to furnish his servant with reasonably safe means, appliances, and conditions with and under which to work, and to exercise such care to keep such place and conditions reasonably safe, went on to say that, if they found from the evidence—

"that on the night of October 28, 1922, in the plant of the defendant in Jackson county, Mo., plaintiff was in the service of defendant; that his duties included the releasing of the chain mentioned in evidence; that this necessitated his climbing up the west side of a heap composed of large, heavy ingots of hot iron; that plaintiff endeavored to do so, and that while he was so doing one of said ingots moved or shifted, if so, in such manner that it caught and rested its weight upon his left foot and burned the tissues and broke one of the bones thereof or otherwise injured the same; that the ingots composing said heap were of such size and form, and were so placed that they were apt to so perform and cause such injury, if so, unless the light on said side of said pile was sufficient to enable plaintiff, while performing his duties to clearly see his footing to avoid injury from such cause, and you further find from the evidence that said light was not sufficient for such purpose, and that it was as the direct result thereof that plaintiff's foot was so caught and injured; that the insufficiency of said light, if so, by reason of the foregoing facts, if so, rendered plaintiff's place of work not reasonably safe; that defendant knew, or by the exercise of ordinary care and prudence could have known, thereof; and that the same had existed, if so, for such length of time that defendant by the exercise of ordinary care might have remedied the same, and that this plaintiff's injury could and would have been avoided—then you must find that defendant is guilty of negligence, and your verdict must be in favor of plaintiff and against the defendant notwithstanding any other instruction given, you in this case, unless from the evidence you further find that plaintiff was himself guilty of negligence that directly contributed to his own injury."

Defendant offered a demurrer to the evidence at the close...