Thomas v. Atlas Portland Cement Company
| Decision Date | 05 December 1922 |
| Citation | 245 S.W. 575,211 Mo.App. 141 |
| Parties | JOSEPH C. THOMAS, Respondent, v. ATLAS PORTLAND CEMENT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Hannibal Court of Common Pleas.--Hon. Charles T Hays, Judge.
REVERSED.
Judgment reversed.
Geo. A Mahan and Dulany Mahan for appellant.
Eby & Hulse for respondent.
(1) The trial court committed no error in overruling the defendant company's demurrers to the evidence, for the reasons: (a) Because the evidence clearly shows that the using of the freshly painted sheets of tin was the proximate cause of the plaintiff's injury. (b) Because the evidence in the case does not show that plaintiff was guilty of contributory negligence as a matter of law. Jewell v. Bolt & Nut Company, 231 Mo. 176; Wendt v. Zitlosen Mfg Co., 229 S.W. 1107; Dakan v. Chase, 197 Mo. 267; Stephens v. Hannibal & St. Joseph Ry. Co., 96 Mo. 207; 2 Thompson on Negligence, 975; 1 Labatt on Master and Servant, sec. p. 1241; Curtright v. Ruehmann, 181 Mo.App. 544; O'Brien v. Implement Mfg. Co., 141 Mo.App. 331; Rigsby v. Oil Well Supply Co., 115 Mo.App. 297; Depuy v. Railroad, 110 Mo.App. 123. (2) The trial court did not commit error in sustaining plaintiff's objection to the hypothetical question propounded to defendant's witness, Dr. U. S. Smith; said question appearing at page 88 of the printed record. The question propounded did not embrace all of the essential facts in evidence which were required to be submitted in a hypothetical question properly framed. Senn v. The Southern Ry. Co., 108 Mo. 142; Turner v. Haar, 114 Mo. 335; Burge v. Railroad, 244 Mo. 76. (3) The court did not commit error in giving plaintiff's instruction No. 3. (a) The use of the term "convicted" was proper. (b) Nor did said instruction purport to cover the entire case. (4) The evidence in the case shows that plaintiff's injuries were caused by the negligence of defendant company and the concurring negligence of one of defendant company's foremen; and the fact that there may or may not have been negligence on the part of defendant Hubbard does not relieve the defendant company from liability.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant at one of its plants or factories used for the manufacture of cement, at Ilasko, a little village near Hannibal, in Ralls County, Missouri. Plaintiff received the injury which it is alleged caused the loss of his left eye on January 17, 1919, while he was employed by defendant as a carpenter, and engaged, together with three other carpenters, Gamboll, Snedigar, and Crutchlow, in the work of putting a new metal roof on a building occupied by defendant. The general foreman of the carpenter gang of which plaintiff was a member was named Hubbard, who was joined with the appellant here as one of the defendants in the court below. Crutchlow, who was working with defendant, was "straw boss," and was in immediate charge of the three carpenters, including plaintiff, who were doing this work. This roof was being constructed of sheets of tin or corrugated iron about thirty-two inches wide, and from six to nine feet in length. Said sheets were being lapped over at the edges, and riveted together with metal rivets. There were from ten to twenty carpenters in the general carpenter's gang, but only four were engaged in the particular work in which plaintiff was engaged at the time he received his injury. The manner and method of putting on this roof was for two men to sit immediately underneath the roof on a swinging scaffold made by using a board about twelve inches wide, tied by wires to the beams of the roof. This swinging scaffold was close up to the roof--so close that the men sitting thereon could not always sit entirely erect. One of the men on the scaffold tied wires. In this particular case it was Gamboll. The other, who was plaintiff, was engaged at the time in what is termed in the evidence here as "bucking rivets." This was done by sitting on the swinging scaffold immediately underneath the roof, and with an iron bar twenty or twenty-four inches long and one and a quarter inches thick, flattened on one end, a metal rivet about the size of a 22 rifle bullet, with the sharp end up, would be placed on the head of this iron bar, and then pressed or held up against the sheets of tin, after which the man on the roof would be called upon to strike a blow with a hammer at a point about eight inches from the rivet which had been driven immediately prior thereto. The man on top of the roof did not know exactly where the rivet was placed beneath the roof, but only estimated it by the fact that they were placed about eight inches apart. When the blow was struck it would bring the rivet through, and permit the man on the roof to flatten it so as to hold the roof in place, and prevent the seepage of water through the roof.
Plaintiff had been working at this job several days before his injuries. He had been engaged in the carpenter trade for several years, and was about fifty-four years of age. It is alleged that defendant was negligent in ordering and requiring plaintiff to assist in the work of riveting said roof while the paint on the tin sheets used thereon was wet and fresh, thus causing the rivets to be more liable to slip or fly from their position and injure plaintiff.
Plaintiff had frequently complained to defendant that such work was dangerous, but he received no assurance of any kind that the condition would be remedied, and on the morning he received his injury, he informed Crutchlow, the "straw boss," that, owing to the fact that they were on that morning using freshly painted sheets of roofing, it was very dangerous. He was told, in substance, that it was dangerous, but that it was the order to complete the job without delay, and he was given to understand that he would either have to do that, or quit his job. About a half hour after he began work that morning, one of the rivets which plaintiff was holding in place, on being struck a hammer blow from the top, slipped, and in its flight hit plaintiff in the mouth and knocked out two of his teeth. After his teeth were knocked out, plaintiff went on top of the roof, and, after staying there for about twenty or thirty minutes, he went back to his scaffold and again began "bucking rivets." At about ten or eleven o'clock a. m., on January 17, 1919, and on the same morning his teeth were knocked out, a rivet which he was holding against the roof was struck from above by the man on the roof, slipped, and hit plaintiff in the eye, injuring it in such a manner as to cause the loss of the sight thereof. As to whether or not this caused the loss of sight is a controverted question, but there is ample evidence, as appears from the testimony of the eye specialist who treated him later, from which the jury could reasonably infer that such injury caused the loss of the sight of plaintiff's eye.
Plaintiff testified that the danger in which he was placed from the flying rivets was "just like holding up a 22 rifle and letting them shoot at you." He so informed defendant's foreman, who admitted that he knew it was dangerous, but it had to be done. It is a controverted fact as to whether or not plaintiff, in performing this work in the usual and ordinary way, should lower his head immediately after placing the rivet against the roof and calling to the man above to strike. Plaintiff and the "straw boss," Crutchlow, stated that it was necessary to watch the operation to see that the rivet did not slip from its position, while witnesses for defendant testified that the usual and ordinary way was to drop the head after giving the signal to strike, so as to protect the head and eyes. It appears that when dry roofing was used, about one rivet in eight or ten would fly from the head of the iron bar when it was struck, but that when wet sheets were used, as was the case here, about one in three or four would fly from the position in which they were held against the roof.
Defendant offered...
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