Troll v. St. Louis Portland Cement Co.

• Decision Date: 07 November 1911
• Parties: TROLL v. ST. LOUIS PORTLAND CEMENT CO.
• Court: Missouri Court of Appeals

140 S.W. 963

160 Mo. A. 501

TROLL v. ST. LOUIS PORTLAND CEMENT CO.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

1. MASTER AND SERVANT (§ 125)—INJURIES TO SERVANT — NEGLIGENCE OF FOREMAN — EVIDENCE.

Plaintiff and certain fellow servants in charge of S., as foreman, were engaged in taking down a smokestack above the roof of defendant's building. The stack was held in place by a heavy iron band, from which guy wires were made fast to various parts of the building. S. directed one of plaintiff's fellow servants to loosen the band without first loosening the guy wires, notwithstanding he was warned that that was unsafe. Decedent was engaged with some blocks and tackle nearby, and, the bolt that held the band having broken before the servant in charge of that work expected it to separate, the band immediately sprung from the stack, jumped to one side, and fell on decedent with such force as to crush his skull. Held, that the foreman was negligent in directing the loosening of the bolt without first loosening the guy wires, and also in ordering decedent to work on the roof immediately beneath the band.

2. MASTER AND SERVANT (§ 129)—DEATH OF SERVANT—PROXIMATE CAUSE—INTERVENING "ACCIDENT."

Where defendant negligently ordered decedent to work on the roof of a building immediately beneath an iron band on a smokestack, where he was likely to be struck by the band in case it should fall, and negligently directed a fellow servant to loosen the band without disconnecting guy wires attached to it, the fact that the bolt which held the band broke earlier than was anticipated by the servant ordered to loosen it did not make the prior negligence the less the proximate cause of decedent's death, since the intervening, premature breaking of the bolt was pure "accident," defined to be an unexpected event, or one occurring without expectation or foresight.

3. MASTER AND SERVANT (§ 291)—DEATH OF SERVANT — INSTRUCTIONS — ACTS OF NEGLIGENCE —"CONTRIBUTED."

Decedent was killed by being struck by an iron band, which fell to the roof of defendant's building from a smokestack which was being taken down. Plaintiff relied on defendant's alleged negligence in ordering decedent to work where he was likely to be struck by the fall of the band, and also in ordering a fellow servant to remove the band without disconnecting guy wires attached thereto; while defendant claimed that the proximate cause of the accident was the accidental and unexpected breaking of the bolt which held the band together, before it was intended. The court charged that the jury might find for plaintiff, if decedent was in the exercise of ordinary care, and "such orders by the foreman were negligently given, and directly contributed to cause the injury." Held, that the word "contributed," as used, referred to the separate, negligent orders given by defendant's foreman; and hence the instruction was not erroneous in the use of that word, on the theory that it authorized a recovery in case defendant's negligence contributed to, as distinguished from being the sole cause of, the injury.

Appeal from St. Louis Circuit Court; R. M. Foster, Judge.

Action by Harry Troll, public administrator, against the St. Louis Portland Cement Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts, Williams & Dines and William R. Gentry, for appellant. A. R. & Howard Taylor, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff's intestate on account of personal injuries received by him through the alleged negligence of defendant. The verdict and judgment were for plaintiff in the circuit court, and defendant prosecuted the appeal. Since the appeal was perfected, plaintiff in the action departed this life, and the suit has been revived and now proceeds in the name of Mr. Troll, his administrator.

Defendant, incorporated, is a manufacturer of cement, and owned and maintained a large building in St. Louis county, which it employed in its business. Above this building it maintained a very large iron smokestack, about 4½ feet in diameter, which towered as much as 45 feet above the roof of the building. At the time decedent received his injury, he was in defendant's employ as a laborer, and engaged, along with about 16 other men, all under the immediate command and charge of Smith, the foreman, in preparing to take down or remove the smokestack above mentioned. In order to accomplish this result, it was necessary to erect a large pole, known as a gin pole, on the roof of defendant's building over which the smokestack protruded. On this gin pole, block and tackle, or pulleys with ropes, were to be attached, and decedent, with several others, was engaged about this pole, lifting the pulleys or blocks, together with the ropes, from the ground to the roof of the building, where the gin pole was erected. The gin pole was situate on the roof of the building, about nine feet distant from the huge smokestack. About 25 feet above the roof of the building, the smokestack was encircled with an iron band, which is said to be one-half inch thick and two inches wide. This iron band was in four separate parts, each of which, we understand, constituted a quarter circle. These four parts, or quarter circles, which constituted the iron band when fastened together, were bolted one to the other at the ends. After being so bolted, they constituted the iron band which encircled the smokestack on the outside, about 25 feet above the roof of the building. On each separate piece or quarter circle of this iron band, there was made fast a wire or cable, which is spoken of in the evidence as a guy wire, for the purpose of holding the smokestack in place. These four several guy wires were made fast to the several corners of the building, and operated to brace or hold the smokestack in position. While decedent was engaged at his work on the roof about the gin pole, and within a few feet of the smokestack, defendant's foreman, Smith, ordered Fuller, another workman, to ascend the smokestack on an iron ladder, which was constructed upon the side of the same, and loosen by means of a steel hammer the bolt which connected two parts of the band together, to the end of removing the band from the smokestack. Fuller testified for decedent to the effect that he stated to Smith at the time that it was dangerous to do so, unless the guy wires were cut or loosened, as in their present condition they would occasion the band to jump like a spring when its parts were dissevered. Notwithstanding this, the foreman directed Fuller to proceed to perform the task as he told him, without loosening the guy wires, and he did so.

For decedent, the evidence is that he was wholly without knowledge as to this matter, as he did not hear Smith...