McMenamy v. Scullin-Gallager Iron & Steel Co.

COX, J. The errors assigned are that the evidence shows the deceased to have been guilty of contributory negligence, and that demurrer to the testimony should have been sustained. Second, that the court erred in submitting to the jury the question of defendant’s negligence grounded upon its failure to promulgate rules requiring warning to be given of the movements of the cranes on Sunday when men were at work making repairs. We will look first to the question of deceased contributory negligence. The evidence shows that at the time of this accident it was usual and customary for the workmen, when required to pass from the ground up to the level where the cranes were located and operated, to climb the lattice work on the posts which support the structure above in the way that deceased climbed up. It also shows that he climbed up on the west side of the post for the reason that there was some obstruction on the east side of the post at the time which made it necessary for him to climb up on the west side. The end of the crane A on which he was at wrork, being so close to this post that he could not pass between it and the post, made it necessary for him to pass around to the south — 714 — of the post to get to his proper place to work. On climbing np this post when he reached the level of the rails on which the wheels of the cranes rnn he would then be in a crouching position because of the fact that the structural work above only left an opening of about four feet above the level of the rails, and he would be required to step out on the rail, or by it, before he could assume an erect position. Witness Robinson gave it as his judgment that it would take deceased about forty or fifty seconds to climb this post. The evidence further shows that crane B which struck and killed McMenamy had been moved once before on that morning and that when it started to move just before the accident it was located about two hundred feet west of the place where McMenamy was killed; that when it started it ran six or seven miles an hour; that there was nothing to obstruct the view of the deceased after he reached the level of the rails and that if he had looked he could have seen this crane coming. There was evidence to the effect that the ends of this crane projected over the track some seven or eight inches and ran very close to the post; that the post was fifteen inches square; that for a man to stand at the end of one of these cranes and allow another to pass he would have to stand edgewise. That in climbing the post and passing around it deceased had his face to the east, and the crane which struck him came from the west. Appellant contends that it was the duty of the deceased to look and listen for the approach of this crane and that if he had looked he could have seen it and could have thus avoided being hurt. In determining this matter we must remember that the plaintiff is entitled to every reasonable inference from the testimony that can be drawn in her favor. . It must also be borne in mind that in the absence of evidence to the contrary, the law will presume that the deceased was, at the time of the accident, in the exercise of ordinary care for his own safety, and that he was not guilty of negligence contrib — 715 — uting to his death. [Riska v. Railroad, 180 Mo. 168, 79 S. W. 445.] This presumption means that deceased did everything which an ordinarily prudent - man, similarly situated, would have done, and unless the evidence overthrows this presumption the final conclusion must be that he was not guilty of contributory negligence. If it be conceded that deceased knew that crane B was liable to be moved at any time, and that it was his duty to look out for it, and if we presume that he was in the exercise of ordinary care, we must conclude that in climbing this post when his head appeared above the rail so he could see, that he did look, and from the fact that he proceeded on his way we would also conclude that at the time he looked the crane was either not in motion, or was so far away as to lead him to believe that he had ample time to proceed on his way and get around the post and out of danger before it would reach him. The evidence shoAvs the crane to have been, before starting, two hundred feet away and if it had run at six or seven miles an hour, as testified, it would take it about twenty seconds to reach the post at which it struck and killed McMenamy. After climbing up to the level of the rails the only way McMenamy could avoid being injured would have been to have gone around the post before the crane struck him. The fact that the ends of this crane passed very near the post which was only fifteen inches in width, and he only having an elevation of four feet under the structural iron above on which to stand, forced him to occupy a crouched position and prevented him from standing edgewise as he would, have been compelled to do to have remained there and allowed the crane to pass. It seems to us that this evidence is sufficient to warrant the jury in finding that deceased was exercising ordinary care and that the injury was occasioned by the fact that when he looked the crane had not started, and that he then proceeded upon his way around the post Avithout any thought of danger and no — 716 — warning being given him, the crane came upon him unawares and thus caught and killed him. Some suggestion is made that the deceased might have gone up some other way; might have climbed some other post, but to have done this he would, after having climbed up, have been required to walk over this structural work twenty-five feet in the air, some distance to his place of work. The evidence also shows that at one time ladders had been provided for the use of the men in going from the floor to places of work on the level of these rails where these men Avere at work; that these ladders had become unsafe and the workmen had, for that reason, abandoned them and it had become the usual custom to climb these posts, and it cannot be said that deceased was negligent in following the usual custom, nor can he be blamed for climbing the post that would land him nearest his place of work. The defense of contributory negligence is an affirmative one and the burden of shoAving it is upon the defendant, and we are not prepared to say that under this evidence it was shown by plaintiff’s testimony, in a way to require the court to declare him guilty of contributory negligence as a matter of law. We think the question was properly submitted to the jury, and they having found in plaintiff’s favor we shall not disturb their finding for that reason. It is next contended that there was no evidence to show the defendant guilty of any negligence and that demurrer to the testimony should have been sustained for that reason. The determination of this question turns upon Avhether or not it was the duty of defendant to have given warning of the approach of the crane, or in some way notified deceased of the' approaching danger. The court, in its instructions, submitted to the jury the question as to whether or not it was the duty of defendant, under the facts proven in this case, to have prescribed some rules or regulations, in the conduct of its — 717 — business relating to the operation of these cranes with a view to give notice of their approach and warn workmen thereof, so that they might avoid danger, and, on this issue, the jury by finding a verdict for plaintiff, must have found that it was the duty of defendant to have provided some regulation to have guarded against injury to deceased. The question of the duty of parties engaged in complicated and intricate work to establish and promulgate rules for the conduct of business was thoroughly gone over by the St. Louis Court of Appeals in the case of Gaska v. Foundry Co., 127 Mo. App. 169, 105 S. W. 3, to which reference is made for a discussion of this question, and it will only be necessary to state here that in all classes of business, in which one set of workmen, in the performance of their work, are liable to endanger the safety of another set of workmen engaged in the another class of work, the one having no relation to the other and being in no way dependent upon the other, then it is the duty of the employer to use ordinary care in this as in all other cases to prevent injury, and if, under the circumstances of the particular case, notice of the impending danger is required to be given then it is the duty of the employer, by rule or otherwise, to provide for such notice. Applying this rule to the facts of this case we find that these cranes, in moving backward and forward, pass so near to each other and so near to the posts that they are liable to catch workmen at any time who might be in a position to be caught between them. A man operating the crane is under the crane,, and his attention is necessarily directed to the floor where the work of his crane is to be performed, and he could not watch the track above, and yet this crane upon this occasion was put in motion at a time when the employer must have known that workmen were liable at any time to be on the track, or in a position where injury might result to them in the running of this crane, and yet it is started upon its course without any — 718 — provision for warning of any kind. It will not do to say that this was an exceptional case, and one that could not he reasonably anticipated on the part of defendant for the evidence shows that Sunday was, generally speaking, repair day, and whenever any of the cranes, or the track or wires used by the electrical department should need repairing it would be necessary for men to be upon this track, twenty-five feet from the floor, with little or no chance to avoid danger should it appear suddenly, and, at this particular time, there were workmen on crane B who were notified before it moved.' The employer should also hare known that there were other workmen upon crane A, and the same regard for the safety of its employees which induced it to warn workmen upon crane B before moving it would have suggested that it warn workmen upon crane A working near the rail of crane B who were liable to be required to pass up and down, climbing the post just as deceased did at that time. Had there been an electrical bell or gong, which is a simple contrivance, attached to the end of this crane, and had it been sounded as it might well have been, as the crane moved, no doubt the attention of deceased, when the crane approached him from the rear, would have been called to his position of danger by the sounding of this bell, and he could then, upon receiving this warning, have quickened his pace and avoided the danger. Our conclusion is that the evidence was sufficient to take the case to the jury, and no substantial error appearing prejudicial to defendant, the judgment will be affirmed. All concur.