Lukamiski v. American Steel Foundries

162 Mo. App. 631 | Mo. Ct. App. | 1912

REYNOLDS, P. J.

The judgment in this case will have to be reversed. It is an action by plaintiff against defendant, a corporation organized under the laws of New Jersey, operating a large foundry at Granite City, Illinois, and having its office and principal place of business in this state, the defendant having been found and duly served in the city of St. Louis.

It appears that there were in use in the foundry of defendant four large cranes moved by electricity, and used to transport heavy loads from one part of the foundry to another. On the day of the accident five heavy loaded “copes” or flasks were being transported by the crane down the foundry to a place in it at which plaintiff was at work. When the flasks reached the point at which they were to be unloaded from the crane, one of them slipped and fell, catching plaintiff’s leg, crushing it and rendering amputation of the limb above the knee necessary. It was in evidence that the task of loading and fastening these flasks on the crane was performed by workmen in the establishment, and that after they were fastened to the crane and were being carried along'through the foundry one or more men went in. advance to clear the- way of laborers or others, warning them of the approaching crane with the flasks. On the occasion of the accident plaintiff was at work at the point where these flasks were to be unloaded, he being an ordinary workman, at the time engaged in picking up what are called “jaggers,” that is pieces of metal which were to be mixed in with sand and serve as binders to hold the sand together in the flasks. There was testimony tending to show that at' the time of the accident there was no one there acting as the advance man.

The gravamen of the complaint is the failure of defendant to afford plaintiff a reasonably safe place to work. When the suit was instituted the defendant corporation as well as one Nonn, alleged to be the general foreman about the foundry, were named as defendants and jointly charged as responsible for the safety of the place. It was in evidence that the work was carried on in the foundry at the time of the accident under the general direction of Mr. Nonn, and that he was the assistant foreman for defendant. There was no evidence that he was present supervising or directing the operation of the crane at the time of the accident and at the conclusion of the testimony the court instructed the jury that under the pleadings and evidence plaintiff could not recover against him. Accordingly there was a verdict in his favor but against the defendant corporation and in favor of plaintiff for $5000. Judgment followed accordingly and it is from this judgment that the defendant corporation has appealed to this court.

From the evidence in the case it appears that these flasks or copes were negligently loaded on the crane and that one of them tipped and slid off, and caught and crushed plaintiff’s leg. But it very clearly appears that the men who did the work of loading were fellow employees — fellow workmen — of the plaintiff. At the instance of defendant the court so instructed the jury. Obviously loading the copes, the manner in which that should be done, the care with which it should be done, were matters the employer could delegate to the workmen. The employer, however, was bound to have the crane when loaded with these flasks moved along down and over the ground where its employees were at work with reasonable care and in such a way as to avoid injury to plaintiff or other workmen about the place. That fell within the duty and obligation of the employer to use reasonable care in providing as safe a place for the performance of the service by the employees as the character of the work to be done would permit. [Zeigenmeyer v. Charles Goetz Lime & Cement Co., 113 Mo. App. 330, 88 S. W. 139.] There was evidence tending to show that the failure to send some one in advance of the load as it was being moved down the foundry on this crane, was the direct cause of the accident; that if some one had been there in advance to have given warning, plaintiff could have gotten out of the way of the danger attendant upon the place in which he was working, and so have avoided injury. By the first instruction given at the instance of plaintiff, however, the court, calling attention to the fact that Nonn was the foreman and that he had ordered and directed plaintiff to a place where he was injured, told the jury that if they believed and found from the evidence, “that the defendant negligently and carelessly provided a place for the plaintiff to work which was not reasonably safe, by reason of its nearness to a certain ‘electric crane’ or ‘traveler,’ described in the evidence, to which the defendant had caused to be attached an unreasonable and unsafe number of large moulder’s flasks, and if (they) believe and find from the evidence that said flasks were negligently and carelessly piled, under the direction of the foreman Nonn, or if (they) believe and find from the evidence that the defendant negligently failed to provide a person to go before said moving load to, warn persons in the immediate vicinity of its approach, ’ ’ and if they believed that plaintiff was performing the duties assigned to him and while exercising due care and caution on his part for his safety, such as the nature of his duties and his surroundings would permit, was struck by a flask falling from the load and injured and as a result of the injury lost his leg, and if the jury found from the evidence, “that defendant knew; of said dangerous and unsafe place in which plaintiff was required to work, or might have known of said place by the exercise of ordinary care,” then they should find for plaintiff and against defendant unless they found that plaintiff was guilty of contributory negligence or had assumed' the risk as defined in the other instructions given. This instruction further told the jury, “that negligence on the part of the foreman Nonn is negligence on the part of the defendant American Steel' Foundries. Knowledge on the part of the said foreman Nonn is knowledge on the part of the other defendant. ’ ’ There were two other instructions given as to the assumption of risk-by the employee and the duty of the master to furnish a reasonably safe place for the servant to work.

Obviously when this first instruction was drawn and given, the court lost sight of the fact that Nonn was no longer a defendant. It also ignores and is in conflict with that given at the instance of defendant, to the effect that the men who had loaded the flasks on to the crane were fellow workmen with plaintiff. Its tendency was, first, to convey to the jury the idea that this work was done under the immediate direction of Nonn, when in point of fact there is no evidence of that in the case beyond the fact that he was the general foreman or assistant in charge of the operations of the foundry. The jury were told by defendant’s instruction that the act of loading the flasks on the crane was the act of fellow workmen. The act of sending the crane with its load down through the foundry and to a point where men were at work was a matter for which defendant, as employer, was responsible, inasmuch as it entered into the question of whether defendant had used reasonable care in providing as safe a place in which the plaintiff was at work as the character of the work to be done required. In this instruction the court told the jury that if they found from the evidence that defendant had negligently and carelessly provided a place for the plaintiff to work which was not reasonably safe, etc., they could find for plaintiff. That is not a correct statement of the law. [Zeigenmeyer v. Charles Goetz Lime & Cement Co., supra.] Moreover, this instruction tended to mislead the jury, as it practically told them that attaching the number of flasks to the crane was attaching an unreasonable and unsafe number. Whether that was an unreasonable and unsafe number was for the jury, even assuming it was not the act of fellow workman. But as the court correctly told the jury that this was the act of fellow workmen, it had no place here. The instruction was erroneous in the further particular that it told the jury that if they believed and found from the evidence that the defendant negligently failed to provide a person to go before said moving load to warn persons in the immediate vicinity of the approach of the loaded crane, the defendant was liable, other facts being present. The error here is in assuming that the act of failing to send some one in advance was negligence. Whether that was so was the very fact that the jury ought to have been required to find in the case.

The second and third instructions given at the instance of plaintiff were mere general declarations of law without an application of them to the facts in the case. This form of instruction has been uniformly condemned by our Supreme Court and by this court.

For these errors the judgment is reversed and the cause remanded.

Nortoni and Caulfield, JJ., concur.