Warren v. Townley Mfg. Co.

• Decision Date: 08 April 1913
• Citation: 155 S.W. 850,173 Mo. App. 116
• Parties: WARREN v. TOWNLEY MFG. CO.
• Court: Missouri Court of Appeals

155 S.W. 850

173 Mo. App. 116

WARREN v. TOWNLEY MFG. CO.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

Rehearing Denied April 22, 1913.

1. MASTER AND SERVANT (§ 270) — DEATH OF SERVANT — EVIDENCE — ADMISSIBILITY.

In an action for the death of an employé, evidence of the manner in which the employés were in the habit of doing the work was admissible, though the petition contained no allegation on the subject.

2. MASTER AND SERVANT (§ 286) — DEATH OF SERVANT — PLEADINGS — ISSUES.

Where, in an action for the death of an employé, the answer was a general denial without any plea of contributory negligence or application of the doctrine of fellow servants, the case was properly submitted to the jury on substantial evidence of the employer's negligence.

3. MASTER AND SERVANT (§ 89) — DEATH OF SERVANT — LIABILITY.

Where it was the habit of employés to assist in carrying on whatever work was to be done at the time, irrespective of any particular orders, an employé standing idly by for a moment, waiting to go to work when necessary, was entitled to the protection of an employé.

4. MASTER AND SERVANT (§ 286) — OBLIGATION OF MASTER — SAFE PLACE TO WORK.

Where it was negligence to fail to provide a cover as a protection to the employés, it was the duty of the employer to provide it, but whether it was negligence is for the jury.

5. APPEAL AND ERROR (§ 1067) — HARMLESS ERROR — REFUSAL OF INSTRUCTIONS.

Where an employé was killed by a loose branch remaining in a tree falling on him, and the negligence relied on was the negligence of the employer in permitting the loose branch to remain in the tree, and the court properly submitted the issue of negligence in that respect, the refusal to charge that it was not the employer's duty to cover the place where decedent was standing was not prejudicial.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Mary A. Warren against the Townley Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. R. R. Ely and J. L. Fort, both of Kennett, for appellant. Abington & Phillips, of Poplar Bluff, for respondent.

REYNOLDS, P. J.

Action by plaintiff as widow of Calvin Warren, to recover damages for the death of her husband, alleged to have been caused by the negligent acts of defendant. Defendant is a company engaged in the business of converting logs into shingles and other products at its mill in Dunklin county. At the time of the accident which is the foundation of this action, defendant was placing certain machinery for the conveyance of logs to its mill. A part of the machinery was what is called an overhead skid, consisting of a stationary engine located upon a flat car set on a spur track, that track ending against a tall cypress tree, called a "head tree." A steel cable, designated as a carriage line, was wrapped around this tree about forty feet above the ground and carried from there to another tree called the "tail tree," which was about six hundred feet away, and fastened around that tail tree. There was a movable pulley or carriage, suspended from this cable or carriage line, which was moved from one end to the other by means of ropes attached to the carriage, these ropes being operated by a revolving drum which received its power from the stationary engine. Hanging from the movable carriage was a steel rope, at the end of which was a set of tongs, which, when fastened to logs near the tail tree were carried by steam power and by means of this movable carriage, along the cable to the place desired. On the day of the accident, the flat car on which this engine was in place was immediately under the top of the head tree. Preliminary to the stringing of the cable between the head and tail trees, the foreman of defendant in charge of the gang, selected a tall cypress tree as the head tree. This tree was partly dead, having some dead and some living branches on it toward the top, while the top of the tree itself was dead. Before wrapping the end of the cable around this tree, the foreman directed a man to climb the tree, cut off the top and cut off some dead limbs. This man went up the tree by means of climbers, cut off the top, which fell to the ground, cut off a large limb under the top, that also falling, and then partially cut another limb and broke it off, so that it also fell to the ground. He climbed down from the tree and the men below appear to have then fastened guy lines to the tree, shaking it to detach any loose or dead branches that might be lodged in the tree. The cable was then stretched from the head tree to the tail tree. The carriage line was then attached and the gang appears to have been taking the slack out of the overhead carrier line or cable in some way, not very clear to us. At any rate, the carriage or "skidder," as it is called, with the engine and the drum on it, was directly at the foot of this tree. While some of the gang were taking in the slack of the cable, the strain upon it shook the head tree and a branch of one of the limbs which had been cut off and which it appears had lodged in the upper part of the tree and which was between three and four feet...