*1
MсClain,
John W.
Administrator
the Estate
Charles Mc
City Bridge
Clain,
Respondent,
Deceased,
v. Kansas
Com
Appellant.
pany,
Kansas Court March 1938. Mosman, Bussell Field Rogers, respondent. Bell <& for Buzcurd Lathrop, Crane, Sawyer Right- Reynolds, Mersereau, <& Richard S. er Dean appellant. Wood E. for
CAMPBELL, damages C. Action for for death Charles Mc alleged Clain due negligence of the defendant. The judgment $5280, obtained from which the ap defendant has pealed. deceased, McClain, was, death, the time Charles 28, defendant, P. M., February employee
8:30 an defendant’s'floating barge and other members of crew on board engaged driving piling were bed of River. the Missouri alleged part petition follows: day place, said Charles “Plaintiff states on said and at said *2 engaged said and employ was in- defendant in
McClain or working the said boat enterprise mаritime river and on on said a thereof; being crew his duties and a member vessel pile rigging of leadsman, required to work in the and he was being others, boat, duties, among his driving apparatus on said and thirty above rigging place a about feet to at stand sаid caps’ piling before upon the ‘bell of said vessel-and driven, rigging, neces- working and in in said it was said piling was upon work a sary required up climb and down and and to which, operated along ran and a ladder which defendant whipped and thereof, In to and toward the course of fro operation was re- away upon from ladder which the said deceased and likely be quired proximity close thereto to to work in such and at time operation the said line was to strike deceased if required to said ladder. the deceased was be'on when time quitting at about “Plaintiff states that on said date and thereof, said attempting' climb down the said Charles McClain to operation of the do, to at which time the ladder as was his ceasеd, ladder, on the defendant he was said and while deceased, warning to the said negligently carelessly and and without it to from lad- operated line which caused out said deceased, violently said lad- throwing der and him from the strike causing upon der to fall strike the of the said ves- and and deck therefrom the waters of said Missouri Riv- sel and to be hurled er, into ’’ acts, he lost life. by reason of which said was killed and assumption general á risk. plea The answer was a and denial ' single question appeаl whether presented , this in the refusing requested, the court instruction erred defendant’s a to the evidence. nature of demurrer twenty-two barge wide, seventy-feet long feet was about and (spoken front tower of in evidence as
and its there was а end “leads”) part a a ; of the tower which there ascending by descending the tower. the leadsman in used i witness, Johnston, testified: Plaintiff’s pull pile over and in- up “The leads men this at leads, machinery, picked by it hoist- up and'then then the leads, ing engineer gets up it it around in front picks rope belly pile throw the leads man a it around uses leads, leads, gets pull up then after it it into into the river,’ says, ‘Set set it and the or foreman gets a just then he on it and after he bonnet puts bonnet that, place, has After he uses holler for the hammer. then it drive. easier to to make n jet. did, think If I don’t have described didn’t judge, you. jet? pipe,.I hear What is this a a steel fifty, fifty-one long, with a five- is handled two eights drum, inch steel cable that runs to the front drum hoist. . ‘‘ Q. go, goes Where does ? point over block, top over shive around and back down drum the hoists. top the shive here from the And about how far Fifty-one something feet, is,
deck? I think that deck, like that. deck, Then, as the cable comes cable, down to
what it fasten there ? does A. The steel drum of the hoist.
“Q. How operated? is that drum By engineer, friction lever. ‘‘ Q. No, no, Is it ? A. automatic ‘‘Q. Tell *3 A. If engineer us about it. the lower wishes to raise or jet, the a friction up, has lever. He can it throw the lever in pull jet, down, and raise the and if he to wants slack he releases the it lever and lets the down. ‘‘Q. operated solely engineer. So that it at is the will of the A.
Yes, sir. ...
Continuing— drum, long,
“The cable is a dead-ended on to some three feet I long, judge guess around, would Í feet or two better the cable drum, runs back and forth picked across as is up. this the down, Sometimes when substance, the is some this it hits the right- would be either on left-hand side or of the the drum drum, hand of the on side and if the left-hand the side leads, the of right-hand side, the of end the cable would be the tight, it it whip
and would make wоuld it be bound-to back across the leads.
“Q. Yes, And back sir, A. it whip did and fourth? did. “Q. Sideways, Yes, as well in and out? A. sir. “Q. you Yes, it sir, And have seen that ? A. . I have. . . do “Q. whips? Well, it the it pull, they And is when A. when tight, it, they tight make and the slack that it is make it with drum, tendency it has a back and . then forth. “Q. engineer bargе, sit Where does reference with machinery? to the shed over the A. the front of end engineer open, engineer’s cab is and the of set-up, course on the the hoist there outside, about even with is a eab on but all of the it, in plain front is where can see view. open,,
“Q. plain rigging there in view the entire Is he of work and the Yes, there? sir.
“Q. charge engineer? Yes, right. pump All Is sir.
“Q. what the Having job, tbe know you been foreman on do a Yes, sir, of I do. duties the foreman are? A. ‘‘ foreman—first, you know Q. Now, do what are duties engineer Yes, are? what duties of engineer, respect to Now, with what are duties going It the en- keeping lookout of the on. is a work is is duty man al- gineer’s—it engineer’s to see the leads times; man at all ways in the clear. has view leads plain He all, man. if he he can ... up lоoks see leads get duties leads man. What does Let’s down engineer picks piling out of the water— up he do ? A. When the hoist—picks- it picks up them with the on this same drum leads man swings barge, in front and the around three-quarter rope general inch ten or twelve as a rule has about belly duty It long that is line. is his to throw this called pile, pull end of line around catch the 'line and to- other get position up; for the set it into foreman to back in the lead and duty man, ask then, it the foreman to holler leads genеral rule, say duty there?’ then as a ‘What his do put the bonnet on say, pile.’ they After set ‘Set has and then he calls for hammer. pile, same steel, saucer, made in A. A What bonnet? like a this weigh shape saucer; judge fifty pounds it would particular saucer, оr bonnet. “Q; pilé-driver, do Having particular foreman on that been is, operating the duty respect to- know what gets down? A. It is leads man on the ladder to come when the jet, the man stop while is on use it. *4 safety. engineer’s “Q. It Why:is A. is the Well, that? for him always man, in the kеep to- Watch-for leads clear he best can. you, may asked
“Q. whether I have and I have 'I don’t know engineer? that line sole control A. jet asked under the this—is Yes, sir. -to, “Q. stop it when he wants it when he operate he can So - Yes, to ? A. sir.
wants “Q. you Wеll, that line out? Now, far have seen A. how eight ten feet. some ‘‘Q. resting substance, jet is on some solid And when the where against then, respect Laying to the laddér? A." line ladder. slack, be if any- A. There is bound-tó “Q. Is there slack? it'hits bed. thing solid in river ? A.
“Q. against the ladder Yes. lying it is Johnston, any char- “Q. Mr. was there device kind or Now, jet line .lead, pile prevent acter this ladder and driver .” A. There not. whipping out? was ac- fatal time of the at the present witness, Johnston, was not cident. on the he saw McClain Hart, plaintiff, D. testified
C. for thirty abоve landing in leads third ladder, was walking landing from the barge; that McClain was ‘‘ ’’ stepping around the ladder, the last “Q. say stepping around on You you him? A. Yes. saw of Well, I heard A. “Q. happened?' thing the next What was in the river. looked, was a man there in river and a noise Yes, I heard noise, hit the deck? you as he hear Did him hit deck. whether gentlemen* Hart, you tell these
“Q. Now, I want Mr. dogged off? stopped been not that
No, sir. sir, No, McClain? you At time last Charlie saw n running.
had not. noise you heard the operation at time Was line Yes, ? A. the water hitting deck and in time, ‘1Q. you if can estimatе the long time was How until stepping* around on to saw just on the ladder and the deck ? A. I saw him heard the thud on next line, heard coiling some around and started turned that; Well, something like “Q. Well, it a second or less? than minute.
less ‘‘ not, there Q. Now, jury whether or as the sat tell the rigging and plainly see machinery, was he where could at his Yes, could see it.” he was where he ladder? A. seen Hart, plaintiff, testified that for
Arthur hit other the ladder sway from whip and one side ascertaining when way no top cab; that leadsman had line. operate engineer would ques- that at the time Kellison, plaintiff, testified Virgil landing tower, third on the tion he saw deceased falling head deceased body he saw a few minutes thereafter that instant of time deck; that at down toward working. a fellоw falling struck that McClain further shows *5 river. into thrown the thereby to be
workman, caused and both were recov- was not body of McClain but the workman was rescued The several months thereafter. ered until the plain- it was incumbent petition allegations the
Hrider the the tending that at to prove evidence produce tiff substantial jet the the ladder landing onto “stepped” time McClain op- put in operating; jet not line was was that line thereafter eration, which strike McClain. operation it to caused jet tending that Plaintiff to shоw any failed to offer evidence landing operating not went from line was at the time McClain put jet line was ladder, showing that or evidence onto showing that ladder, operation was evidence while McClain land- jet was on the whipping line wаs between the time McClain contrary ing body plain- deck. the time his struck the On during operating that the was tiff’s evidence line was to effect allegations Thus, plaintiff disproved the essential all of said time. “operation upon ladder the that when dеceased went neg- ceased, while he said was defendant deceased, op- carelessly warning to- said ligently a/nd and without the ladder whip- out erated the said line which caused (Italics ours.) .” and strike deceased. was tending no slack thе cable There was evidence show that whipped at time after deceased any taken that landing. started from the however, argues that defendant’s ivitnesses plaintiff, The one of ‘‘engineer picking fell that at was the time deceased
testified said, picking up the jet.” “They was The witness referred to indicating jet.” testimony nothing witness There of that the deceased was the ladder. that referred to time when engineer not it was the plaintiff The further contends leadsman evi- line while the was on the ladder. The operate stepped lad- upon shows that when deceased dence for the fell, operating. line der the From until deceased was to ob- opportunity was no the time so short upon and act it. serve situation by еvidence, plain pleaded supported any
It is case request given. therefore the verdict should have been directed ' sufficient in supporting reason itself the defend- There is another jury. plaintiff failed- to make case for the cоntention that ant’s A., 46 U. S. C. parties agree the action is under section The assumption Jones of risk commonly The Act. Und'er act called Towing Inc., Transportation Co., v. Moran & is defense. [Scheffler al., (2d) et 68 F. 11.] appears from one on the laddеr plaintiff’s danger. operating When while the line McClain landing ladder while op- stepped from the safety place danger. eration, from a moved he, therefore, law, as a matter of danger was obvious assumed R. risk his act. v. Terminal Ass’n whatever attended [Williams case, (2d) 651; Louis, 98 W. Scheffler St. S. supra.] plaintiff argues the fact deceased struck *6 1195 tends to show eight from the bottom six or him from the ladder. knocked the deck furnished
We do not find the where McClain struck struck McClain and caused any substantial evidence to fall from the evidence Applying concerning value of circumstantial rule ah, 427, rel. Cox the case of State ex v. et Mo. announced case, 551, S. W. instant clear the facts negligent. show defendant was failed to ab- its or account for his
The defendant failed call arising not presumption prove from such failure does sence. The alleged prove petition. tend to the facts must be borne plaintiff’s one in which shows affirma- mind the case is tively that he a verdict. еntitled to have - G., Sperry, con- stated, judgment reversed. For reasons curs. Campbell, C., adopt- foregoing opinion
PER CURIAM:—The opinion judgment reversed. All of the court. concur. ed as Liberty Beitling Co., Respondents, Ins. P. Mutual v. S. S. S. Appellant. Kresge Company, (2d) 116 S.W. 522. City Appeals. March Kansas Court 1938.