Tinsley v. Massman Const. Co.

• Citation: 270 S.W.2d 835
• Decision Date: 12 July 1954
• Docket Number: No. 2,No. 42893,42893,2
• Parties: TINSLEY v. MASSMAN CONST. CO. et al
• Court: United States State Supreme Court of Missouri

Page 835

270 S.W.2d 835

TINSLEY v. MASSMAN CONST. CO. et al.

No. 42893.

Supreme Court of Missouri, Division No. 2.

July 12, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 13, 1954.

Clarence C. Chilcott, Terrance W. Imes, Kansas City, Irwin Walker, St. Louis, for appellant.

Walther, Hecker, Walther & Barnard, Harold F. Hecker, St. Louis, for respondent Massman Const. Co.

Roy P. Cosper, John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for respondent, St. Louis Southwestern Ry. Co.

BOHLING, Commissioner.

Alvie G. Tinsley, plaintiff-appellant, sued Massman Construction Company, a corporation, referred to herein as Massman or contractor, and St. Louis Southwestern Railway Company, a corporation, referred to herein as Railroad or contractee, for injuries sustained as the result of a cave-in while Massman was constructing a bridge across the Red River near Garland City, Arkansas, under a written contract with Railroad. Plaintiff submitted his case on the theory that Massman was not an independent contractor; that, although an employee of Massman, he was by operation of law an employee of Railroad; that the Workmen's Compensation law of Arkansas, Ark.Stats. Sec. 81-1301 et seq., did not apply; that defendant Railroad was liable under the Federal Employer's Liability Act, 45 U.S.C.A. Sec. 51 et seq. (herein referred to as F.E.L.A.) and Massman liable under the common law; and that defendants were negligent in failing to furnish him a reasonably safe place to work and directing him to work therein. Each defendant contends that plaintiff failed to make a submissible case against it, and Railroad further contends that reversible error was not committed at the trial. Defendants' separate motions for a directed verdict were overruled. The jury returned a verdict in favor of plaintiff and against Massman for $10,000, and exonerated defendant Railroad. Thereafter, the trial court overruled plaintiff's motion for new trial against Railroad, sustained Massman's motion to enter judgment in accordance with its motion for a directed verdict, and overruled Massman's motion for new trial. Plaintiff appealed from the ensuing judgment.

Berryman Henwood was the duly appointed, acting and qualified Trustee of Railroad, an interstate common carrier, during the time here involved, serving under appointment by the United States District Court in St. Louis from 1936 until September, 1947, when the properties were returned to the corporation, which assumed the obligations of the Trustee.

The high water in early 1945 damaged several of Railroad's bridges. The protective dike above its Red River bridge at Garland City was affected, caused the track to be temporarily out of service, and threatened the loss of the bridge. The bridge extends generally east and west, but the directions in the record are spoken of as north and south. Railroad sought the professional advice of Dr. Howard of Howard, Needles, Tammen & Bergendoff, Consulting Engineers, Kansas City and New York. Dr. Howard prepared the plans and specifications.

Upon the recommendation of the consulting engineers it was decided to remove the north 80-foot steel girder span of the bridge and substitute two 100-foot steel girder spans, relocate the 80-foot steel girder to the north of the north 100-foot steel girder, construct steel and concrete piers to support the 100-foot girders, and new wooden piers to support the north end of the 80-foot girder, and also a new 28-foot pile and timber trestle immediately north of the 80-foot girder.

The contemplated construction called for the services of structural ironworkers and special equipment. Plaintiff testified that it would not be safe to put inexperienced men on this type of construction, and most of the ironworkers were employed by bridge and construction companies engaged in that work, such as Massman, American Bridge Company, Kansas City Bridge Company and others. The Railroad had a Bridges and Buildings (B & B) department, composed of carpenters who did its bridge work; but it did not have structural ironworkers or the necessary heavy equipment to do the work, and had never constructed any deep water piers.

The approval of the United States District Court at St. Louis was secured for letting the work to a contractor. Massman specialized in heavy bridge and river improvement work, had equipment and an organization therefor, and was the successful bidder. The contract between Railroad and Massman was executed November 23, 1945.

Plaintiff was hired as an experienced structural ironworker by Massman to work on a bridge at Chester, Illinois. When the work at Chester was completed, Massman arranged for plaintiff and several of the ironworkers to work on Railroad's Red River bridge under Arthur Duncan, its foreman, and Edmund J. Wildermuth, its superintendent on that project.

The track rested on an embankment at the north approach of Railroad's Red River bridge. This was to be the new location of the 80-foot girder, its north end to rest on a pile and timber pier, pier 9. The work necessitated supporting the track by falsework, and plans by Massman, dated May 5, 1946, covering this, were approved by Railroad's Chief Engineer. Clusters of piles were driven into the embankment and bents constructed to support stringers, forming a trestle supporting the track. We understand it was necessary to saw off the piles to support the 80-foot girder below the surface of the embankment; and an excavation, about 6 feet deep, about 12 feet wide, and 28 feet long was made around some of the piling for pier 9. Robert H. Patterson, a civil engineer, was Railroad's inspector, representing its Chief Engineer, on the project. Plaintiff testified that Patterson, using the transit, had them mark the depth at which the piles were to be sawed, and also had lined up the piles for them. Approximately four trains passed over the bridge daily. This caused the ground, sandy loam soil, to vibrate. On August 23, 1946, two crews of two men each were sawing the piles, Virgil Smith and plaintiff constituting one crew. The other crew finished sawing a pile, the butt or thick end being at the top. The men prepared to push the sawed-off portion over, but Massman's foreman Duncan told them to leave the section on the stump, assuring them it would not fall. Plaintiff and Smith resumed sawing and soon thereafter the sawed-off portion fell, striking plaintiff, and simultaneously therewith the south wall of the excavation, which was practically perpendicular and not protected by any shoring, caved in, burying plaintiff, and injuring him.

Massman, under the Arkansas Workmen's Compensation law, paid plaintiff's hospital and medical bills and compensation at the weekly rate of $20 for 31 weeks. Plaintiff returned to work for Massman in March, 1947, and drew regular pay until he quit working for them in February, 1948. There was no final settlement of plaintiff's claim under the Arkansas Act.

The pertinent portion of Sec. 1 of the F.E.L.A., 45 U.S.C.A. Sec. 51, reads: 'Every common carrier by railroad' while engaged in interstate commerce 'shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * *.'

Section 5 of the F.E.L.A., 45 U.S.C.A. Sec. 55, provides: 'Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void * * *.'

Plaintiff submitted the issue whether the relation between Railroad and Massman was that of vice-principal and agent or servant, and plaintiff, by operation of law was an employee of Railroad within the protection of the F.E.L.A. as one of fact to be determined by the jury. Railroad contends the relation was that of contractee and independent contractor, and as a matter of law it is not liable for Massman's negligence, plaintiff having failed to make a submissible case thereon. The contract between Railroad and Massman embraces the specifications and blueprints. The specifications are detailed and lengthy. Many provisions thereof are presented for consideration in ruling the several points made on the issue. To develop them would extend this opinion beyond reasonable limits, and it is unnecessary to do so in the instant case in view of plaintiff's submissions to the jury and the ultimate result. We accordingly pass to the alleged trial errors and our doing so is not to be taken as an indication that plaintiff's position should be sustained.

The alleged trial errors relate to the instructions, and for a proper understanding plaintiff's instructions must be given consideration.

Plaintiff's instruction No. 1 informed the jury that it was admitted that Berryman Henwood, Trustee (Railroad), was engaged in interstate commerce and owned and operated the track, bridge, et cetera referred to in evidence; and further instructed that if the jury found that the Trustee had contracted with Massman to replace a portion of the supporting structure of said bridge; and that said work was being performed 'under the superintendence' of Massman by its agents and employees over plaintiff; and that the progress of said work was halted for the passage of interstate trains over said bridge upon the directions of said Trustee; and that said Trustee retained the right to retermine whether said bridge was safe therefor and whether a train was to be stopped before proceeding across said bridge; and that said work was at all times subordinated to the use of the track for the passage of trains; and that during the progress of said work the bridge was used for the uninterrupted passage of trains; and that changes in the supporting structure or track were at all times under the direct control and supervision of said Trustee; and that plaintiff was engaged in work resulting in changes in said supporting structure and...