Sustar v. Bambrick Bros. Construction Co. , 179 Mo. App. 495 ( 1913 )

ALLEN, J.

This is an action by plaintiff to recover for personal injuries received by him, while engaged as a servant of defendant, alleged to have been sustained through the negligence of the latter. Plaintiff recovered and the defendant prosecutes the appeal.

On July 24, 1911, plaintiff was in the employ of ■defendant, assisting in the construction of a certain sewer in the city of St. Louis. At the time of his injury, he was working in a trench which was being dug ■by means of the operation of what is known as a sewer machine. The latter consisted of a certain “carriage” carrying buckets, and was operated upon wheels along an elevated track extending along and above the top of the sewer, some fifteen feet or more above plaintiff. This track was supported by a sort of trestle which stood upon timbers laid across the sewer. The trestle and track extended for some distance along the ■sewer; and the trench was dug by filling large buckets therein, which were hoisted and conveyed by the carriage along the elevated track and dumped. The rails of the elevated track were held in place by certain ■crossbeams, the upper edges -thereof being a little lower than the tops of the rails, in order that the flanges of the wheels of the carriage would not strike them.

On the day plaintiff received his injuries he was working at certain concrete work which was being placed in a portion of the sewer which had been dug. The trench was being dug, ahead of him, and the buckets containing the material hoisted therefrom were being carried along from time to time by the carriage directly over the place where plaintiff was working. Upon the occasion in question the bottom of one of these buckets, containing a large rock weighing it is said some eighty or ninety pounds, was permitted to strike one of the crossbeams of the elevated track, causing this rock to fall from the bucket, and which, after striking one of the crossbeams, fell upon plaintiff while engaged in his work below, striking him upon the head and inflicting very serious and permanent injuries.

■To an understanding of the assignments of negligence upon which the case was tried some further explanation of the operation of the sewer machine is necessary. The carriage was operated along the elevated track, and the buckets were raised and lowered,, by an engine situated some distance’ down the track, and which performed both of these operations by means of cables running therefrom to the carriage. A signal man stood upon the platform of the carriage and gave signals-to the engineer with respect to the hoisting of the buckets, the stopping of the same at the proper height and the operation of the carriage along-the track. "When the buckets were filled in the. trench below, a signal was given to the engineer to raise them. When they had been raised to the proper height it was the duty of the signal man to signal the engineer in order to stop their upward movement. It seems that there was a ratchet arrangement provided,, to prevent the buckets ‘from being raised too high and likewise from falling back after they had been elevated. After the signal man had. signalled the engineer to-check the upward movement of the buckets, it was the duty'of the former to throw a lever to cause what is called the “dogs” to catch in the teeth of the ratchet wheels to prevent the buckets from ascending higher or from falling back. Then it was his duty to signal the-engineer to release a certain brake and convey the carriage along the track in order to dump the buckets.

There was expert testimony to the effect that the total possible clearance that could be arranged to be had between the bottom of the buckets and the crossbeams was something like two feet; though there was testimony that as this particular machine was then “rigged up” and operated the largest possible clearance was a foot or fourteen inches. It appears that each of these large buckets had a bail, to which was welded a strip of iron with a holt in it to receive a hook which was fastened to the cable. It seems that defendant was using eight of these buckets, of almost exactly the same size, two of them being hoisted of lowered at a time, and the others being down in the trench to be filled. It appears that the hooks for lifting the buckets were attached to the cable by means of clamps and that the height to which the buckets might be raised, above the crossbeams depended somewhat upon the location of these clamps. There was also testimony, by an expert witness of defendant, that the ratchet arrangement above mentioned, to hold the buckets in place after they had been elevated, was such that if one of the “dogs” should just miss one “tooth” of the ratchet the bucket would drop back a distance of about eight inches before the “dog” would catch the next “tooth” and sustain it.

The cause was tried .upon three of the assignments of negligence charged in the petition, and it is unnecessary to notice the others therein contained.

One assignment of negligence is that the defendant negligently employed and retained an incompetent and unskilled signal man, whose duty it was to signal the engineer in lifting and conveying the buckets above mentioned. And it is charged that on the occasion in question the said signal man signalled the engineer to cause a bucket to be started along the track, before it had been elevated to its proper position to be so moved, and when it was hanging so low that it would strike and come in contact with the crossbeams, whereby the rock was caused to fall and injure plaintiff. And it is charged that the signal man performing said duties at the time was not reasonably fit and qualified to perform the same; and that defendant negligently retained him in its employ, when defendant knew, or by the exercise of ordinary care would have known, of his unfitness and incompetency.

Another assignment of negligence is to the effect that the method or plan which defendant was pursuing at the time of plaintiff’s injury, in conveying the buckets along the track, and over the sewer, was not a reasonably safe one; and that it was not reasonably safe for plaintiff to work in the sewer while such buckets were being so conveyed along and over the same, for the reason that they, as so operated, were likely to tilt and swing violently and to strike á crossbeam and spill their contents. And that defendant knew, or by the exercise of ordinary care would have known that such plan was not reasonably safe.

A third assignment of negligence is that the conveying machine, above mentioned, then used and operated by defendant, “was so negligently constructed, arranged and used, and that the said crossbeams were so negligently fixed, placed and maintained by defendant, that the space between the bottom of said buckets and the said braces, when said buckets were conveyed along said track, was too small, so that there was great danger, in the swinging or tilting of said buckets, of the bottom or lower end of said buckets striking the said braces and spilling the contents and injuring plaintiff.” And it is charged that defendant knew, or by the exercise of ordinary care would have known, thereof.

The answer, after the court had sustained a motion directed to a part thereof, and as it stood when the cause went to trial, was a general denial.

The evidence shows that at the time of plaintiff’s injury one Fred Fisher was acting as defendant’s signal man on the carriage above mentioned. Just how long he had been performing such duties is a question as to which the evidence is conflicting. On behalf of plaintiff there was testimony of witnesses working in and about the sewer to the effect that Fisher had acted as signal man for a period of only two or three days prior to plaintiff’s injury. One Harbison had been defendant’s regular signal man, and Fisher had been employed as a common laborer digging and working in the trench. It appears, however, that Harbison gave Fisher some instructions as to giving the signals, and that for at least some short time prior to the occasion in question the latter had been acting in this capacity. Defendant’s testimony went to show that Fisher had first given signals something like three months prior, to the time of the accident; that he had relieved Harbison from time to time, in the meantime, and that in all he had acted in this capacity for a period amounting to perhaps fifteen days. But that, as has been said, was a matter in dispute; for the testimony of witnesses for plaintiff, who were present during the period in question, was to the effect that Fisher had only begun to give signals two or three days before the date upon which plaintiff was injured.

On behalf of plaintiff there was considerable testimony to the effect that so long as Harbison, the regular signal man, was giving the signals, the buckets were raised and held to such a height that the bottoms thereof would be from four to six inches above the crossbeams above mentioned, as they were being conveyed down the elevated track; but that during all of the time that Fisher acted as signal man, the buckets were stopped at such a height that there was but a very small space between them and the crossbeams, as they moved along the track; that they were frequently operated but half an inch, an inch, or two-inches above the crossbeams, though sometimes the distance was three or four inches; and that the buckets actually touched and scraped the beams a number of times.

It was shown that, during the time while Fisher was acting as signal man, defendant’s foreman was on the ground supervising and directing the work, and in a position to see and know what the signal man was doing and how the buckets were being elevated and conveyed.

And it was shown that at the time of plaintiff’s injury defendant was excavating rock from the trench ahead of where plaintiff was working, and conveying the same in these buckets above plaintiff. And there was testimony to the effect that as two of the buckets were being hoisted Fisher prematurely signalled the engineer to convey the carriage and buckets down the track, at a time when one of the buckets.was hanging so low that it struck a crossbeam of the track above plaintiff, causing the bucket to swing and the rock to fall therefrom upon plaintiff and injure him.

I. Appellant urged that its demurrer to the evidence should have been sustained. But we think that the demurrer was well ruled. It is true that in order to cast liability upon the master for the act of a fellow servant of the plaintiff, upon the ground of the' incompetency or habitual negligence of such fellow servant, the general rule is that it must appear that the latter was habitually incompetent or negligent, and that such habitual incompetency or negligence of the servant was known to the defendant, or by the exercise of ordinary care could have been known to him; and that the. master after having such actual or constructive knowledge thereof retained the incompetent or negligent servant in his employ. [See Allen v. Lumber Co., 171 Mo. App. 492; Tucker v. Telephone Co., 132 Mo. App. 418, 112 S. W. 6.] Though it has been held that “whether one act of negligence will establish incompetency, or not, depends upon the character of the act;” that an act “may be such as, per se, to prove incompetency.” [See McDermott v. Ry. Co., 87 Mo. l. c. 295.] But we think that there was ample evidence tending to establish a state of facts which, if true, brings plaintiff’s case within the general doctrine above stated.

It quite clearly appears that Fisher, who was acting as signal man at the time of plaintiff’s injury, had previously been performing the work of an ordinary laborer in the trench, and that the defendant had taken him from this work and placed him in charge of the -operation of its sewer machine, as signal man. The testimony is conflicting as to how long he had been performing the latter services before plaintiff’s injury. Be this as it may, the testimony of plaintiff’s witnesses is to the effect that during all of the time that Fisher was acting in this capacity the buckets were not elevated to the height which they had been •during the time that Harbison, the regular signal man, was in charge of the machine, but that during all such period it was customary for Fisher to so give his signals that the buckets, as they were conveyed by the ■carriage down the track, would ordinarily clear the crossbeams by a very narrow margin — frequently by as little as half an inch, one, two or three inches; and that during this time, the buckets were seen to actually touch or scrape such crossbeams quite a number of "times, and which may be readily inferred to have been -due to the manner of giving the signal.

During all of this time the defendant had a foreman at the place in charge of the work; and obviously what others saw respecting the habitual operation of the machine he could and should have seen and known. Under such circumstances as appear here in evidence, ordinary care on the part of the master, or his representative, would require that such matters be observed. Undoubtedly the work was one fraught with much danger to those working in the trench below, over whose heads the machine was being operated, and especially when rock was being excavated and conveyed in swinging buckets which might be tipped and their contents precipitated below.

Prom the evidence it appears that the height to which the buckets were raised prior to being started upon their way down the track depended much upon the time of signalling the engineer and the operation of the lever designed to cause the buckets to be held in position by the ratchets. And it further appears that the work of the signal man was not such a simple task as appellant would have us believe; but one which required a certain amount of skill and experience in order to safely operate the mechanism in question, under the circumstances appearing. It seems that the buckets and the carriage were operated with considerable rapidity; that the buckets were raised rather rapr idly until the engineer was signalled as they neared the point where they were to be held suspended; and that when they were there caught and held in position, the carriage would begin to move on its way. Indeed it appears that frequently there was no stop or interval between these two movements, although it seems that the proper and safe plan of operation was to see that the buckets were securely fastened in position before moving the carriage. At any rate the entire operation was a rapid one; and it is said that the carriage moved along the track at or about the speed that a horse would trot.

In view of all of the facts appearing in evidence as to the nature of the work, the duties of the signalman, the danger involved, and the evidence adduced touching the manner in which Fisher performed the duties of such position during the time that he was employed in that capacity, it cannot be doubted that there was substantial evidence tending to show that the latter was not sufficiently competent and qualified— did not possess the requisite shill — for the performance of such duties; and that the master either knew this, or at least had ample opportunity, by the exercise of ordinary care, to have discovered and known the same, as was its duty to do. Indeed plaintiff’s evidence tends with much force to show that defendant’s said servant, who it seems was but an ordinary laborer was totally unfit to be entrusted with duties upon the proper performance of which depended the lives and safety of men working directly below in the trench, without protection from falling objects, and that defendant knew or should have known thereof.

"We think that the plaintiff made a sufficient showing upon this assignment of negligence alone to take his case to the jury, and therefore, so far as concerns the ruling on the demurrer to the evidence, it is unnecessary to consider the other charges of negligence upon which the case was tried; but these will be touched upon in considering the assignments of error made by appellant with respect to the instructions.

II. Error is assigned with respect to the giving of instruction No. 1 for plaintiff, which told the jury that if they found that defendant negligently employed and retained in its employ at said time and place an incompetent and unskilled signal man, who was not reasonably fit and competent to perform such duties, and that because of such incompetency and unfitness, if any, he caused the carriage to be started and moved along the track while one of the buckets was hanging so low that it struck a certain crossbeam, and which was thereby caused to tip and spill out a heavy rock, etc., whereby plaintiff was injured; and that defendant knew, or by the exercise of ordinary care would have known, of the unfitness and incompetency of said signal man and of the danger to plaintiff by reason thereof, etc., then the verdict should be for the plaintiff.

That there was evidence to support this instruction follows from what we have said above. It is assailed, however, upon the ground that the jury are not thereby required to find that the signal man actually gave a signal to the engineer to start the carriage when the buckets had not been raised to the proper height. There is no merit in this, however, for the reason that the instruction requires the jury to find that, because of Fisher’s incompetency and unfitness, he caused the carriage upon this occasion to be started and moved along the track, when one of the buckets was hanging so low that it struck a certain crossbeam.

The instruction is further said to inhere with error because it assumes that the signal man was incompetent. But a reading of the instruction makes it perfectly clear that it is not open to such criticism; for it very plainly requires the jury to find that the signal man was'unskilled, and not reasonably fit and competent to perform such duties, and that defendant negligently employed and retained him. The instruction nowhere assumes that the signal man was incompetent.

It is also said that there was no evidence upon which to base a finding that the defendant knew or by the exercise of ordinary care would have known of the incompetency of the signal man. This, however, is fully disposed of by what we have said above; and further comment is unnecessary.

III. Error is further assigned in the giving of plaintiff’s instruction Fo. 2, which told the jury that if they found that defendant at said place then used and operated a certain carriage upon a track extending along the top of the sewer, “and that large buckets, by means of cables and steam power, were being-lowered into the sewer and after being filled were hoisted up t.o the track and were being conveyed along said track and over and above where plaintiff was standing and required to stand,” and that the buckets, “while so customarily operated, were hanging so low that they came in contact at their lower end with and against a certain wooden crossbeam or beams, and that one of the said buckets was thereby tipped, tilted and caused to spill and drop a large rock which struck plaintiff on the back part of his head;” and that the defendant “adopted and used at said time and place, in conveying the said buckets along said track over plaintiff, as aforesaid, a plan which was not reasonably safe in this, that said buckets were likely to tilt and swing and to strike the said crossbeam and to spill the said rock and injure plaintiff,” and that defendant knew, or by the exercise of ordinary care should have known, that the' said plan was not reasonably safe, etc., and that such negligence, if any, directly caused one of the buckets to strike a crossbeam and tilt, and to spill the rock and injure plaintiff, then plaintiff was-entitled to recover. (The italics are ours.)

It is urged that the giving of this instruction was error because there was no testimony upon which to predicate it. Appellant’s argument in this regard proceeds upon the theory that the portion of the instruction first above italicized requires the jury to find that the customary or normal way of handling the carriage and buckets, adopted by defendant, was to move the carriage when the buckets were sq low that they came in contact with the crossbeams. And it is argued that plaintiff’s own evidence is that the buckets were customarily operated (i. e., while Harbison was signal man and before Fisher began to perform such duties), at such a height that they would clear the crossbeams by a space of from four to six inches; and that there was no evidence that the customary or normal operation of the buckets was such as to cause them to strike the crossbeams, but that on the contrary all of the testimony was to the effect that under Harhison this had never been known to happen.

We think, however, that the instruction is not to be given the meaning which appellant seeks to ascribe to it with respect to the use of the words “while so customarily operated.” These words, as used in the first italicized portion of the instruction above, do not appear to have been intended to be construed with the language immediately following them, in the way that appellant construes them.

The instruction requires the jury to find that at the time and place when and where plaintiff was injured the defendant used and operated a certain carriage along a track, and that buckets were lowered into the sewer by means of cables, and which, when filled, were hoisted and conveyed along the track above plaintiff, etc., and that such buckets “while so customarily operated” were hanging so low that they came in contact with a certain crossbeam, or beams, and that one of said buckets was thereby tipped, etc. It does not seem that the jury would understand from this that they were required to find that defendant’s custom, in the usual and normal operation of the machinery, was to operate the same with the buckets so low that they struck the crossbeams. The instruction does not require the jury to find that defendant customarily operated the buckets thus; nor that as defendant customarily operated them they were hanging so low that they came in contact with the beams. The wording of the instruction is somewhat unfortunate, but it appears first to deal with the general method employed in performing the digging operations by hoisting and conveying the buckets in the manner mentioned, and the jury are then required to find that the buckets “while so customarily operated,” (i. e., according to defendant’s general plan and method previously described) were, on this particular occasion, hanging so low as to come in contact with a beam or beams ‘£ and that one of said buckets was thereby tipped,” etc. In other words it appears that the jury were required to find that the buckets were on this occasion hanging’ so low that they came in contact with the beams; not that it was defendant’s custom to normally operate them in this manner;.and that the words “while so customarily operated” refer to the general method of handling the buckets, previously mentioned.

This appears to be further borne out by the succeeding portion of the instruction which we have above italicized, by which the jury were authorized to find that the general plan and method adopted by defendant was not reasonably safe, in that the buckets, as operated, were likley to tilt and swing and to strike the crossbeams. The latter appears to be the gist of the instruction, and which is predicated upon plaintiff’s second assignment of negligence above mentioned, contained in his petition, and which charged that defendant’s method or plan of operation was not reasonably safe.

And while the instruction is not drawn with great nicety or technical accuracy, nevertheless we think that the jury could not well have been misled by it into the belief that they were required to find that the defendant normally operated the buckets so low that they struck the crossbeams.

And we think that there was sufficient evidence upon which to predicate a finding that the general plan adopted by defendant, with which this instruction really deals, was not a reasonably safe one. There was testimony that, as the machine was then arranged and operated, the greatest possible clearance between the buckets and the crossbeams was about a foot or possibly fourteen inches; that even under the regular signal man the buckets were ordinarily stopped at a height of only from four to six inches above the crossbeams; that while the buckets were ascending rather rapidly it was necessary for the signal man to cause them to be stopped and caught by the ratchet arrangement before they ascended high enough to forcibly strike or interfere with the machinery above, and when they were sufficiently high to dear the crossbeams; that the ratchet arrangement was such that if one of the so-called dogs missed a tooth on the ratchet wheel a bucket would drop back about eight inches. This testimony, together with the fact that the buckets were swinging suspended by cables attached to the bails thereof, and that the entire operation was a rapid one, tended to show that the method of operation was such that danger inhered therein with respect to the buckets striking the crossbeams and tilting; and there was evidence from which the jury might find that the defendant, upon the whole, had not adopted a plan of operation that was reasonably safe, at any rate when large rocks were being thus conveyed over the heads of unprotected workmen.

And what we have said above disposes of the contention that this instruction is inconsistent and in conflict with instruction No. 1 above discussed. Viewing instruction No. 2 as we do, the two theories of negligence are not inconsistent. Both were pleaded and were not without proof justifying their submission to the jury.

IV. A further assignment of error pertains to the giving of instruction No. 3 for plaintiff. This instruction, aside from the preliminary portion thereof, told the jury, in substance, that if the latter found that the conveying machine which defendant was using at the time and place in question was negligently constructed, arranged and used, in that the space between the bottoms of the buckets and the crossbeams was so small that there was immediate danger, in operating the buckets, of the lower ends thereof striking the crossbeams and spilling their contents; and that defendant knew or by the exercise of ordinary care should have known thereof and that it was dangerous to plaintiff, while engaged in his work, for the buckets to be so operated and that the buckets were apt to swing, tilt and strike the crossbeams and injure plaintiff; and that such negligence of defendant, if any, directly caused one of the buckets to strike a crossbeam and tilt and to spill the rock and injure plaintiff, then their verdict should be for plaintiff.

It is said that there was no evidence upon which to predicate this instruction, for the reason that the testimony of witnesses for plaintiff and defendant alike was to the effect that the conveying machine used by defendant was a “Potter Sewer Machine,” of standard type, and such as was generally in use in sewer work at the time in the city of St. Louis.

And in this connection appellant relies greatly upon Brands v. St. Louis Car Company, 213 Mo. 698, 112 S. W. 511, where, among other things, it is said: “No inference of negligence can arise from evidence which shows that the implement was such as is ordinarily used for like purposes by persons engaged in. the same kind of business. ”...

That was a case involving the liability of a master for injuries sustained by the servant caused by the bursting of an emery wheel. And the negligence upon which the case was grounded was that defendant did not use a certain convex wheel instead of the straight one which burst. [See, also, Chrismer v. Telephone Co., 194 Mo. l. c. 208, 209, 92 S. W. 378; Coin v. Lounge Co., 222 Mo. l. c. 506, 121 S. W. 1; Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703; O’Dowd v. R. R. Co., 166 Mo. App. l. c. 669, 150 S. W. 729.]

But obviously this doctrine is wholly without influence here. This is for the reason that the testimony upon which appellant relies in this regard goes not further than to show that the sewer machine was one of standard type, generally in use. This instruction, which is predicated upon the third assignment of negligence, mentioned above, and pleaded in the petition, proceeds not upon the theory that defendant was negligent in using a sewer machine of this type or sort, but upon the theory that the machinery, comprising the same was negligently arranged and placed, in that, as the parts were then correlated and operated, the space between the bottoms of the buckets and the crossbeams was too small for the safe operation thereof. The theory of negligence thus submitted does not differ materially from that submitted by instruction No. 2, but deals more particularly with the arrangement of the parts of the device, as it was then being operated.

There was evidence tending to show that the mechanism employed could be so arranged that the buckets could be raised to a greater height than that permitted by defendant’s arrangement thereof. And in this regard it was not shown that it was usual or customary to operate such mechanism as defendant did operate it, under like circumstances and conditions.

"Without repeating what we said above respecting the giving of instruction No. 2, we think it clear that there was sufficient evidence to justify the giving of the instruction now under consideration. There was sufficient evidence from which the-jury might find that defendant had breached its duty to the servant, under the theory of negligence submitted by this instruction, and that such operated to cause plaintiff’s injury.

"V. Further assignments of error are disposed of by what has been said above, and need not be separately noticed. A careful examination of the record has convinced us that no error prejudicial to the appellant intervened below. No point is made respecting the amount of plaintiff’s recovery. The judgment

should therefore be affirmed. It is so ordered.

Nortoni, J., concurs. Reynolds, P. J., dissents, being of the opinion that the demurrer to the evidence should have been sustained.