Wolff v. Scullin Steel Co.

• Decision Date: 06 January 1920
• Docket Number: No. 15694.,15694.
• Citation: 217 S.W. 571
• Parties: WOLFF v. SCULLIN STEEL CO.
• Court: Missouri Court of Appeals

217 S.W. 571

WOLFF v. SCULLIN STEEL CO.

No. 15694.

St. Louis Court of Appeals, Missouri.

January 6, 1920.

Appeal from St. Louis Circuit Court; Glendy B. Arnold, Judge.

"Not to be officially published."

Action by Catherine Wolff, administratrix of the estate of George Wolff, deceased, against the Scullin Steel Company. Verdict and judgment for plaintiff, and the defendant appeals. Affirmed.

Jourdan, Rassieur & Pierce, of St. Louis (Fred L. English, of St. Louis, of counsel), for appellant.

Koerner, Fahey & Young and John M. Holmes, all of St. Louis, for respondent.

ALLEN, J.

This is an action brought by plaintiff, as adminstratrix of the estate of her son, George Wolff, deceased, to recover damages for his death, alleged to have resulted from the negligence of the defendant. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff in the sum of $5,000, from which the defendant prosecutes this appeal.

At the time of his death, to wit, January 30, 1916, George Wolff, then about 22 years of age, was in the employ of the defendant in its shop or factory in the city of St. Louis, and engaged in operating a large crane propelled by electric power. While engaged in sanding a track upon which the crane operated, he was caught in certain revolving gears, sustaining injuries from which he died on the same day.

The action is brought under section 7828, Revised Statutes 1909, requiring that—

"the belting, shafting, machines, machinery, gearing and drums, in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; and if not possible, then notice of its danger shall be conspicuously posted in such establishments."

The petition charges that on said January 30, 1916, certain gearing located at the north end of the crane, near the top thereof, was, and for a long time prior thereto had been, negligently left wholly unguarded by defendant; that it was dangerous to the deceased and other persons employed therein or thereabout while engaged in their ordinary duties; and that such gearing could easily have been guarded so as to prevent the injury to the deceased, etc.; and "that on the date last mentioned, while deceased was in the active discharge of one of the ordinary duties of his employment, to wit, while placing sand on the track upon which said crane moved, and while in the exercise of ordinary care, he was in some manner caught by the revolving gearing, and drawn in between the said gears or gearing, and was killed."

The evidence discloses that in defendant's factory or shop there was, at the time here in question, a number of large traveling cranes operated by it in the course of its business. George Wolff, who had been in defendant's employ for some considerable period of time, was one of its "cranemen"; it being his duty to operate one of these cranes which ran back and forth upon a track for a distance of about 300 feet. It appears from the testimony and the photographs in evidence that one end of this crane rested upon a wheel which ran along a single track. Upon the crane, a short distance from this wheel, were the gears in which Wolff was caught. From the beam forming the main part of the crane was suspended what is termed the "controller box" or "crane cage," which was partly inclosed by railings. It was perhaps six feet in length and three feet or more in width, and contained "controllers" similar in general design to those used on electric street cars. The upper part of one end of this cage or controller box was near the gears mentioned, and the cage was perhaps 18 inches or more from the track. A small iron ladder was situated in this cage, a distance of perhaps ½ feet or more from the track. This ladder extended from the bottom of the cage to a "running board" 12 inches or more in width, which was situated above the cage, and extended along the lower edge of the beam which formed the main part of the crane. To the outer edge of this running board were fastened certain vertical strips which supported a railing extending along the running board.

At the time of his injury the deceased was putting sand upon this rail, or "sanding the track." It appears that it was necessary to do this at certain intervals, and that it was done while the crane was in motion. No eyewitness saw the deceased at the instant when he was caught between the gears. The testimony of one Rudolph Whee, who was then in the defendant's employ, shows that Wolff was on this running board, in some position, at or near the end thereof, a short distance from these revolving gears, with a large bucket of sand which had been placed on the running board near him; and that from this bucket he was taking sand, with a smaller bucket or can, which he was pouring on the rail as the crane moved along. The witness says that when he last saw Wolff the latter was "hanging up in the gear of the crane"; that he did not go to Wolff's assistance for the reason that some others were then undertaking to extricate him.

A witness for plaintiff, one Willek, who had worked on cranes at the defendant's plant for about a year and a half, having worked at the plant for about three years, testified that he was familiar with the different types and models of cranes used by the defendant, and the construction and operation thereof; that the gears here in question could have been guarded, and that such guarding would not have interfered with the operation of the crane.

Further reference will be made to certain phases of the evidence in the course of the opinion.

I. The first assignment of error relates to the ruling of the trial court on the demurrer to the evidence interposed by the defendant. It is argued that the court should have peremptorily directed a verdict for the defendant, for the reason that the deceased, it is said, was guilty of contributory negligence barring a recovery. The contention is that the evidence convicts the deceased of contributory negligence as a matter of law, in that the evidence discloses that there were two ways of sanding this track, one a dangerous way and the other a perfectly safe way, and that the deceased, of his own volition, negligently selected the dangerous method for performing the work.

At the trial below defendant adduced evidence tending to show that it was defendant's rule that a craneman should not undertake to sand the track alone; that when it became necessary to sand the track some other craneman or operator should be called to operate the controller while the...