Bequette v. Pittsburgh Plate Glass Co. , 200 Mo. App. 506 ( 1919 )

ALLEN, J.

— This is an action to recover for personal injuries sustained by plaintiff while in' the employ of the defendant Pittsburgh Plate Glass Company, as its servant. The suit was instituted against the Pittsburgh Plate Glass Company and the Universal Sand Company, both corporations; and the trial below, resulted in a verdict and judgment against both defendants, from which -the Pittsburgh' Plate Glass Company alone has. appealed.

At the time of plaintiff’s injury, to-wit, November 28, 1913, the appellant owned and operated a glass plant' at Crystal City, Missouri, together with railroad tracks running therefrom for a distance of perhaps a mile or more to a point on the bank of the Mississippi River, at which place there were certain switches and side tracks. Long prior to plaintiff’s injury the appellant leased the tracks and premises at and near the river bank to the Universal Sand Company. It appears that the latter company, through one Straight, was erecting a certain “plant” on the bank of the river at this point. It owned and operated a sand-pumping apparatus or station at the river bank, but, it seems, was operating it during the erection of the plant mentioned only for the purpose of pumping and delivering a few carloads of sand per week to appellant, Pittsburgh Plate Glass Company.

From a point two or three hundred yards from the river, where was located a stationary engine and a drum, a track ran down a slight incline toward the river. It appears that a short distance below this engine there were certain switches' or ■> connections, and from this place two tracks branched off, one on either side of what is termed the main or center track. One of these side tracks, as we may term them, was used for storing empty cars while the other, referred to as the “incline track” or the “sand track,” ran down to the sand pumping station at the river bank where the cars were loaded. The cars were operated on these tracks by means of a cable attached thereto and which was wound upon the drum connected with the stationary engine at the top of the incline. When it was desired to Load a ear with sand one of the “empties” was drawn from the side track upon which it stood, toward the engine, by means of the cable, until it passed a switch, when it was allowed to run by gravity down the other side track which extended to the pumping station at the river. And it appears that when the car was fully loaded it was drawn up by means of the cable and switched on the main or center track, where-the loaded .ears were stored until taken away from the premises. The evidence is that in thus loading a car with sand it was the custom to first load the upper or forward- end of the car, which operation took a few minutes only, and then the car was pulled forward, by means of the cable, about a half a ear length in order that sand might be pumped into the lower end of the car; and that when entirely filled the car was drawn up the track and switched onto the center or main track as stated above.

It appears that prior to plaintiff’s injury there had been some dispute or contention between these two companies as to whose duty it was to repair the tracks upon these premises leased and occupied by the Universal Sand Company; but that it was ultimately agreed that the appellant would make such repairs. On the day of plaintiff’s injury plaintiff and three fellow-laborers in appellant’s employ, under- the immediate supervision of one John Keevin, appellant’s foreman, were engaged in repairing the main or center track between the stationary engine mentioned and the pumping station at' the river bank. As stated the engine and drum were two or three hundred yards from the pumping station; and between these two points the “sand track,” or the side track extending to the primping station, curved somewhat. Keevin and this crew of men. were repairing the center track at a point, it is said, about one hundred yards from the stationary engine, and at this or a somewhat greater distance from the pumping station. Plaintiff, at the express direction of Keevin, who was standing four or five feet from him, was engaged in “nipping a tie,” i. e., was raising one end of a tie.with a crowbar, using a block or other support as a fulcrum, while a spike was being driven into the tie by another member of the crew. In doing this work, in obedience to the direction of the foreman, plaintiff stood, it is said, at the side of this main track near the end of the tie with his left foot to the rear and placed beyond the nearer rail of the side track which ran to the pumping station and which joined the main track a short distance above this point. A few minutes before plaintiff was assigned to this specific work a ear had been sent down to the pumping station over this side track to be filled with sand; and the cable lay loose upon the ground a short distance, perhaps four or five feet, behind plaintiff. While plaintiff was thus engaged, intent upon his work, and watching the driving of the spike mentioned, the stationary engine was suddenly started in motion by the engineer, one Myers, an employee of the Universal Sand Company* causing the cable, as it was drawn taut, to swing over toward plaintiff and strike his leg, crushing it against the rail of the side track, causing a serious injury.

Keevin, who had been in appellant’s employ for a long time, and' whose duty it was to supervise the making of repairs of these tracks, was entirely familiar with the method of handling and loading these sand cars upon the premises 'mentioned. He knew that when a car was sent down to the pumping station it required but a short time to fill the lower end of it, and that in the ordinary course of events the car would then bo moved forward a short distance in' order to fill the other end thereof; and he knew that when' the stationary engine was started for this purpose the cable would swing violently to one side. Plaintiff, who had worked for appellant many years in one capacity or another, had worked for several months as a member of a crew repairing tracks, during about half of which time he was under Keevin. He had also worked at making repairs on the tracks on these premises and was familiar with the operation of the cars and the swinging of the cable.

It appears that when a ear had been loaded or partly loaded with sand at the pumping station, and was ready to be moved, it was customary for the employee of the Universal Sand Company in charge of the loading operation to stand upon the car, or upon “a flat car ahead of the sand car,” and signal to the engineer in charge of the stationary engine by waiving his hands over his head, giving what is termed a “high ball;” and that it was the custom of the engineer, before starting the engine, to call out a warning to anyone upon or about the tracks who might be endangered by the swinging of the cable. On the day of plaintiff ’s injury one Stackley, an employee of the Universal Sand Company, was in charge of the sand pumping apparatus at the river bank; and it was his duty to give the signal mentioned when the car had been partly filled and was ready to be drawn forward a short distance in order to fill the other end thereof.

■ It appears that this was the first ear that had been filled on the day of plaintiff’s injury. Keevin, and all the members of the crew, including plaintiff, testified that they heard no warning shouted by the engineer, or anyone else, before the engine was put in operation causing the cable to swing and strike plaintiff; and there is other testimony of like tenor. Myers, the engineer, testified, however, that a few minutes after the car had been sent down to the sand pumping apparatus he observed Stackley standing upon the car waiving, his hands, i. e., giving a “highball;” that he thereupon shouted a warning to the members of the crew who were upon or about, this main track, and that all of them seemed to move out of danger except plaintiff; that he waited some considerable time, about four or five minutes, before starting the engine, during all of which timé Stackley continued to signal to him in the manner stated above; and that Stackley yelled to him twice before he started the engine.

• Stackley, on the other hand, testified that he gave no such signal for the car to be moved forward;' though he says that he was in fact standing on the sand car, and that he saw Keevin and the crew about the tracks, one man being on the main track, and that he yelled three times to them to warn them. On direct examination he was asked what he did when “the car got full of sand,” and he said: “I didn’t do nothing; I yelled three times; nobody looked up and the engine started.” He said that no one seemed to he paying any attention to his yelling; that he made no gestures whatsoever. On cross-examination he was asked how the engineer received the signal to start, and he said that he did not know; that he did not want the car to start at that time, and that the starting thereof was unexpected to ‘him. When asked why he yelled three times to warn people to get off the track if he did not intend that the car move forward, or did not want it to move at that time, he said: “It was this way, I saw the man on the track on the main line and I yelled to him three times and at that time the engine started up.”

Just what time elapsed after the car had been placed at the sand pumping station and before, the engine was started is not made entirely clear by the evidence. Keevin, in testifying as to this, said: “It didn’t seem to me like it was more than three or four minutes.” As said above, it required but a few minutes to load one end of the car. And it may be inferred from the evidence as a whole touching the matter that the car had been placed at the pumping station longer than three or four minutes, and that Keevin did not realize this. As stated, supra, the testimony of the engineer is that four or five minutes elapsed while Stackley was waiving his hands; and the car had evidently been at the pumping station a few minutes before this signal was given, assuming that -it was so given:. 'And the testimony is that the car had been sent down to the pumping station a few minutes before plaintiff began “nipping” the tie, and he says that he bad been engaged in this work for perhaps two or three minutes when injured.

Keevin testified that he was not looking toward the pumping station to see if Stackley was giving a signal; and that he could not say that he “was listening particularly” for a warning .to be shouted, though, he says, he- would have heard a warning had one been shouted.

Over defendant’s objections plaintiff introduced evidence regarding Keevin’s custom, in repairing tracks of the appellant with this crew, in respect t’o keeping a lookout for approaching danger, and giving the men under him a warning thereof. Keevin testified that it was his duty to look out for any danger that he “saw approaching;” and to warn the men to get out of the way when he “saw some danger to apprehend.” Plaintiff testified: “He (Keevin) watched his men at work, he kept a lookout for his men' from danger. . If there was anything to interrupt us when working, he gave us warning, told us to get off the track where we' were working.” Another witness for plaintiff, a member of this crew, said: “Mr. Keevin always told us to get out of danger when there was any.”

It is earnestly contended, by appellant’s learned counsel that the trial court erred in refusing to peremptorily direct a verdict for appellant; but we are not persuaded that this argument is sound. The fact that the work of- repairing these tracks was being done by appellant, with this foreman and crew of. men, upon premises leased to appellant’s codefendant, the Universal Sand Company, did not relieve appellant from whatever measure of duty it lawfully owed to plaintiff in respect to keeping safe the place, where plaintiff was required to work at.the time of his injury. [See Clark v. Foundry Co., 234 Mo. 436, 137 S. W. 577; Bidwell v. Grubb, - Mo. App. -, 201 S. W. 579; Greenstein v. Christopher-Simpson. A. I. & F. Co., 178 S. W. 1179.] And- we are of the opinion that liability may he cast npon appellant as for failure, of its foreman to exercise ordinary care to keep this place reasonably safe or to warn plaintiff of impending danger.

When injured plaintiff was obeying the command of appellant, through its foreman, which required him to place himself in a position between the track upon which he was working and the cable which lay a short distance behind him. While plaintiff was in this position, and held there, as it were, by the force of this order,- it was the duty of the foreman, we think, as the alter ego of appellant, to exercise ordinary care to keep this place reasonably safe while plaintiff was thus required to occupy it. [See Koerner v. St. Louis Car Co., 209 Mo. 144, 107 S. W. 481; White v. Montgomery Ward & Co., 191 Mo. App. 268, 176 S. W. 1089; Chulick v. American Car & Foundry Co., — Mo. App. —, 199 S. W. 437.] And, under the circumstances, the performance of this personal continuing duty of the master would require that the foreman exercise some care to ascertain when the car at the pumping station was about to he moved. It is true that the record discloses negligence on the part of the engineer of the sand company in starting the engine without ascertaining that plaintiff had received a warning. But it does not follow that there was no negligence on the part of appellant’s foreman in the premises. And when the evidence is viewed in the light most favorable to plaintiff, as it must he viewed for the purposes of the demurrer, we think that negligence on the part of the foreman appears, such as to make the case one for the jury. From the evidence disclosed by the record, it does not appear that we can say, as a matter of law, that Keevin performed the whole duty which appellant owed plaintiff as its servant.

Appellant argues that since neither Keevin nor any members of the crew, according to their testimony, heard any warning, Keevin was not negligent in failing to transmit a warning to plaintiff; that Keevin was not required to keep his eyes continually fixed upon the pumping station, or the car thereat, in order to watch for a signal from Staekley, which in fact was intended as a signal to the engineer and not to Keevin or his crew. We do not say that Keevin was required to keep his eyes constantly fixed upon the pumping station, or the car at that place, to watch for a signal from Staekley to the engineer. But this doe's not mean that there was no duty on Keevin’s part to keep any lookout to ascertain when the car was about to be moved. He knew that the car had been sent down this side track to the pumping station a few minutes before,, and that in the ordinary course of events it would be moved a few minutes later, causing the cable to be swung about. Of this he was fully aware, according to his own testimony. But he took no precautions whatsoever to guard against injury to plaintiff who, by his express command, had been placed in a position likely to be rendered unsafe in a very few minutes. He testified that he did not look toward the pumping station, and did not' “listen particularly;” though, according to the testimony of the engineer, Staekley signalled for four or five minutes, and both he and the engineer shouted warnings. Appellant, through its foreman, was not entitled to wholly rely upon the employees of the sand company to see that plaintiff received a warning, and thus shift to others the non-delegable duty which it owed plaintiff in respect to providing a safe place to work and keeping that place safe. And whether Keevin exercised ordinary care in this respect, under the circumstances, was, in our judgment, a question for the jury.

It is true, as appellant asserts, that Staekley testified that be gave no signal, or highball, by waiving his hands; but plaintiff is not concluded by this testimony. The evidence, regarded in the light most favorable to plaintiff, makes- it appear that this signal was continuously given for four or five minutes, as the engineer testified. In this connection much stress is laid upon the fact that plaintiff, in his petition, alleges that the “defendants . . . negligently failed to warn John Keevin, the servant of defendant Pittsburgh Plate Glass Company, authorized and required by said defendant to instruct and control plaintiff and warn him of approaching danger and provide him a safe place to work, that said cable was about to move.” This, it is said, constitutes an admission that no warning was given Keevin ■ by the employees of the sand company. But, indeed, it constitutes no more than an admission that Keevin received or heard no warning.

Nor do we think that it can be said that plaintiff was guilty of contributory negligence as a matter of law. He was obeying an express command of the master, through its foreman, and was engaged intently upon the work in hand. And he says his duties required that he watch the driving of this spike by his fellow laborer. He could not well perform this task and at the same time watch the movements of the employees of the sand company; and he cannot be convicted of contributory negligence, as a matter of law, in failing to hear a warning, if one was shouted. His opportunity for discovering that the danger was imminent was not equal with that of the foreman who was performing manual labor but was standing a few feet from plaintiff directing the work.

The doctrine of Degonia v. St. Louis, etc., R. R. Co., 224 Mo. 564, 123 S. W. 807, and cases of that character, to the effect that it is ordinarily the duty of track laborers or section hands working upon the tracks of railroad companies to keep a lookout for passing trains, has, we think, here no application.

The action of the court in admitting the testimony adduced by plaintiff regarding Keevin’s custom to warn his men of danger, is assigned as error. We are of the opinion, however, that no prejudicial error was committed in admitting this testimony in evidence. So far as it went it tended to show an established custom in conducting this branch o'f defendant’s business, known to the members of this crew, and upon which they were accustomed, in some measure at least, to rely. And it appears that in pursuing this custom to warn the men of danger which he knew was approaching or which he had reason to apprehend, Keevin was merely to that extent performing the duty which appellant owed to plaintiff and other members of this crew.

The questions raised regarding the giving and refusal of instructions are sufficiently disposed of by what we have said above. ¥e perceive no reversible error in the record and the judgment is accordingly affirmed.

Reynolds, P. J., and Becker, J. concur.