McClintic-Marshall Const. Co. v. Forgy

AMIDON, District Judge. This is an action to. recover damages for death by wrongful act. The plaintiff below, Elnora Forgy, widow of decedent, prevailed, and the defendant, the McClintic-Marshall Construction Company, brings error. [1] These are the facts: The defendant was engaged in constructing a bridge across the Missouri river at Kansas City, for the Burlington Railroad and Armour & Co. It was a large enterprise requiring several years for its completion. To aid in the work, defendant built two sets of double tracks; one running north and south parallel with the approach to the bridge, the other two east and west crossing the first tracks at right angles. The latter were known as service tracks. At the west end they were connected with the yards of the Burlington and Wabash railroads so that cars loaded with materials could be brought in over them by means either of switch engines or the crane cars owned by defendant. These tracks terminated at their eastern end in what was known as storage and assembling yards, where material for the bridge was unloaded, and some work done assembling different parts. For the purpose of handling the bridge material, defendant had two1 locomotive crane cars, to each of which were attached three ordinary flat cars upon which material could be loaded. The cranes were themselves mounted on an ordinary eight-wheel railroad fiat car. They each weighed 86 tons, and had a capacity of 30 tons. The cars were propelled by the same engine that operated'the cranes. The cranes, together with the boiler, engine, and machinery, were mounted upon a frame which rested upon small wheels arranged in a circle. These in turn ran on a circular track on the surface of the flat car. In swinging, the crane did not have an independent motion, but the entire framework revolved about on the circular track. In other words, the crane is what is known as a “whirly.” The boiler was upright. At the bottom was the ash pan, next the grate and fire box, above this were the flues,.and at the top were the hood and smokestack. The boiler was inclosed in a cab. It and some of the machinery was covered by a semicircular roof. The cab was nearly flush with the end of the car when the crane was pointing in the same direction as the car. The flues are fitted into an upper and lower flue sheet. They are not only expanded so as to fit tightly into the sheets, but extend about one-eighth of an inch beyond them, and are then beaded against the sheet at each end. These locomotive cranes were known as Nos. IS and 17. Forgy, the decedent, was engineer qn No. 15. For some time prior to the accident, the flues on his engine had been leaking. On the morning of March 28, 1911, he and another workman were directed to take out the leaking flues preparatory to installing new ones. In doing this he was directed by the superintendent to place his crane car, and the cars usually attached to it, on one of the service tracks at a point little used. The crane and the cars were run in on this track by their own power. The crane car was then uncoupled and removed about 3 or 4 feet from the flat cars, leaving the latter standing on the track to the west, the — 195 — direction from which they had come in and from which they would have to he taken out. We pause here to call attention to the fact that the flat cars were separated from the crane car at the time they were set in on the service track, thus clearly indicating that in the judgment of the men it was necessary for the workmen engaged in removing the flues to get in on the track between the flat cars and the crane car. The removal of the flues was commenced at about 9 o’clock in the morning by Forgy and the assistant master mechanic, a man by the name of Marshall. The hood and smokestack were removed so that one workman could get down to the upper flue sheet and by means of a hammer and cold-chisel cut off the beading. There is conflict in the evidence as to how the other workmen reached the beading at the other end of the flues. On the east side of the boiler as it stood at the time, there was a door inside the cab leading to the Are box. Some of the evidence tends to show that the bottom of the flues was reached through this door. There was another door leading to the ash pan, opening on the west side of the boiler and cab. It was 18 inches long and 7 or 8 inches high. In our judgment the weight of the evidence shows that the lower beading could be most conveniently reached through this door. The ash pan and the grate had been removed, and this also confirms the evidence that at least part of the work was done through this opening. That is the usual method of reaching the bottom flue sheet of such a boiler for the purpose of removing the flues. The light is better than through the door inside the cab. All the evidence shows that the flues were driven out from below and removed through the opening left at the top by taking off the hood and smokestack. At about 4 o’clock in the afternoon Forgy was standing on the ground at the west end of his crane car, between it and the flat cars, looking up through the ash pan door into the boiler, with his hammer and chisel in his hands. At that time crane No. 17, with its three freight cars attached, by direction of the superintendent ran in on the siding for the purpose of removing the other crane and cars to a point in the yard where the flue chambers could be cleaned out with a hose. No immediate warning was given to Forgy. No. 17, with its loaded cars, struck the three flat cars that were standing on the track, and pushed them against the other crane car. Forgy was caught between the two drawheads and killed. Did defendant owe deceased the duty to warn him before disturbing the car on which he was working? Defendant answers that question in the negative. It offered evidence to the effect that it was not customary on jobs of this character to warn workmen of the movement of the cranes or cars; that it was the practice and duty for men to look out for themselves. This evidence was not directed to workmen engaged on the class of work that Forgy was doing. We are of the opinion that when the nature of his work is considered the company-owed him the duty of reasonable care for his protection. It was impossible for him to do his work and keep watch of the movements of engines. For all practical purposes the situation is identical with that of a workman engaged in repairing a railroad car. The rule in force — 196 — on nearly all railroads in the United States for many years requires that such a car (1) be protected by a blue flag by day and a blue light at night; (2) that only the workmen repairing the car can remove the warning. There was no direct evidence in the trial court in relation to this rule, but it has been quoted in text-books and in countless judicial opinions, and may properly be referred to in determining whether the judgment below should be reversed. The trial court, in order to avoid the danger that the jury would give plaintiff the benefit of the fellow-servant law of Missouri (which is applicable only to railroads proper), excluded evidence as to this rule. We think the situations were so nearly identical that the evidence might well have been received. But be that as it may, we think it may at least be considered by this court in determining whether the trial court properly left to the jury to say whether defendant exercised reasonable care with respect to Porgy. In our judgment that question was one of fact and not of law. The rule which has been stated with increasing emphasis by the Supreme Court is expressed in the following language in Kreigh v. Westinghouse, 214 U. S. 249, 256, 29 Sup. Ct. 619, 622 (53 L. Ed. 984): “Where workmen are engaged in a business more or less dangerous, it is the duty of the master to exercise reasonable care for the safety of all his employés, and not to expose them to the danger of being hurt or injured by the use of a dangerous appliance or unsafe place to work, where it is only a matter of using due skill and care to make the place and appliances safe. There is no reason why an employé should be exposed to dangers unnecessary to the proper operation of the business of his employer.” That rule is based upon the simplest considerations of humanity as well as justice. The courts would be false to their trust if they did not enforce it. The duty which it imposes cannot be me.t by renunciation or by shifting the entire responsibility upon workmen to avoid injury. We are of the opinion therefore that the learned trial judge exercised a sound discretion when he left this question to the jury. Did the defendant warn Porgy before disturbing the car? Upon that question the evidence is in hopeless conflict. It may be considered under two headings: First, there was evidence that the man in charge of crane No. 17, as he passed within about 75 yards of Porgy, called out to him, “Rook out, Big Jack, we are coming in there after you,” and that Forgy said nothing, “just turned around and grinned at me.” Springer, the man who says he gave this warning, was standing on the rear end of the flat cars attached to No. 17. On the opposite side of the car, and between him and Porgy, another witness was standing. He says he heard no such call. Another witness standing on the ground between Forgy and No. 17 says he did not hear it. It must be presumed from Forgy’s subsequent conduct that he did not hear the warning. The wind was blowing at the time 38 miles an hour from Forgy towards Springer. We are therefore forced to the conclusion, either that the warning was not given, or that Forgy did not hear it. Second, Master Mechanic Gallinot testified that he visited qrane No. 15 at about 3 o’clock and found that the work of removing the flues had been completed. He says he then told Forgy that he would go down at once and send up Springer with No.. 17 to get No. 15 and take it to a — 197 — point where its flue chamber could be cleaned out with a hose. His testimony on that subject is as follows: “I told Mr. Forgy that I would go right down and have Springer come up and get the crane and to watch out lor crane No. 17; that he was coming in there after it to take it down to the river and wash the boiler out, and the three of us were standing right together on top of this boiler, and he says, ‘All right.’ And I says to Mr. Marshall, ‘You go down and get the hoso coupled up.’ After I had given Mr. Forgy and Mr. Marshall their instructions, I stepped off the crane and walked down to the track, and then told Mr. Springer that I wanted that crane gotten and brought down to the river where I could wash it, as I was to put those tubes in that night and l wanted to get that crane finished up that night.” He further testifies that Springer promptly left to carry out his instructions. These are some of the features in which the evidence is in conflict: (a) Reed, a witness for the plaintiff, testified as follows in regard to Gallinot: “Q. And did you see him around any place around No. 15 crane during the progress of repairs that Mr. Forgy was making on the day of his death? A. No, sir.” (b) Springer testified that Childers, the superintendent in charge of the work, rather than Gallinot, gave the directions to him to go after crane No. 15; that he had given the instruction repeatedly, and both he and Springer testified that considerable feeling had been developed because of Springer’s failure to obey these instructions. Childers was afterwards fully examined as a witness, and did* not explain this conflict. (c) Another feature of the conflict is that Marshall, a witness much relied on by the defense, testified that Gallinot worked with him and Forgy in taking out the flues; that Gallinot did the work at the bottom end of the flues. Gallinot’s testimony, on the other hand, clearly indicates that he had nothing to doi with the removal of the flues. After a most careful reading of Gallinot’s testimony, we are compelled to say that he was not a candid witness. (d) Gallinot and Marshall testified that the work of taking out the flues had been fully completed something like an hour before the accident. Reed, on the contrary, testifies that Forgy, at the time of his death, was actually working on the flues, and all the circumstances go to support Reed’s testimony. During the day No. 17 had been passing back and forth at frequent intervals upon the same track upon which it passed prior to the accident. A considerable time had elapsed after the alleged conversation between Forgy and Gallinot, and the passing of No. 17. For this reason Forgy might have supposed that No1. 17, on the occasion in question, instead of coming after 15, was going into the yards to get material as it had been doing on its previous trips. In view of the conflicting state of the evidence, we think the question of the credibility of the entire body of witnesses was one for the jury, and that the trial court properly left to them the question of what, if any, warning was given to Forgy, and, if it was given, whether it was sufficient to- constitute reasonable care. — 198 — [2] As a third defense the company urges that the negligence, if any, which caused Forgy’s death, was the negligence of fellow servants. The men in charge of crane No. 17 were Without doubt fellow servants of Forgy. If his death was caused by their negligence alone, the plaintiff cannot recover. On the other hand, if the death was caused by the joint negligence of the company and of these fellow servants, the company is liable. Kreigh v. Westinghouse Co., 214 U. S. 249, 257, 29 Sup. Ct. 619, 53 L. Ed. 984; Standard Oil Co. v. Brown, 218 U. S. 78, 85, 30 Sup. Ct. 669, 54 L. Ed. 939. We think there was evidence tending to show that the company failed to perform its duty. It took no measures whatever for Forgy’s protection. We do not say that it was bound td adopt printed rules for the guidance of its employes, but we do say that it was bound to give specific directions that the car upon which Forgy was working should not be disturbed without warning him, and that it should have placed some warning upon the,car to draw the attention of workmen clearly to the fact that it was undergoing repair. The danger was too great to leave the entire operation to the uncontrolled discretion of workmen. We do not think the situation was one to which the rules developed by this court in American Bridge Co. v. Seeds, 144 Fed. 605, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041, and Kreigh v. Westinghouse, Church, Kerr & Co., 152 Fed. 120, 81 C. C. A. 338, 11 L. R. A. (N. S.) 684, are applicable. The facts of those cases were identical, and the latter case was reversed by the Supreme Court in 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984. Just how far their authority on the question of when a risk is one of “operation and not of construction” is. impaired by the decision of the Supreme Court, is not now involved. That rule, however, is one which cannot be pressed too' far without entirely exonerating the master from his duty to exercise reasonable care to furnish a safe place and safe methods of conducting his business. It is instructive that the rule was first developed in connection with scaffolding cases, and has had its most frequent application to actions of that character. It was first announced in New York, and wás worked out by the courts of that state in great detail. What has happened to it there? As- the result of many and appalling accidents, the Regislature has abrogated the rule, and in its place made the master not only liable civilly, but also made him liable as for a felony, whenever a scaffolding or other like structure gives way as the result of imperfect material or construction. The reports of commissions which led to this legislation point out the many accidents, and also show that the construction of scaffolding and other false-work in modern building operations often involves engineering judgment, and that the risks are so great that they cannot properly be left to the judgment of carpenters concerned only with particular features of the work. Certainly a master engaged on a great enterprise like that, here involved, using agencies that are imminently dangerous to workmen, cannot say to its employes, “Here are safe railroads, safe cars, safe cranes, etc., now you use them so as not to injure each other,” and1 thus absolve itself from all liability. To lay down any such a doctrine is to completely exonerate the. employer from the — 199 — primary duty to exercise reasonable care to furnish workmen a reasonably safe place, and also exercise reasonable care as to methods of doing the work so as to safeguard workmen from unnecessary in-jttrv. Those duties are inalienable and continuous. B. & O. Ry. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; Kreigh v. Westinghouse Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984. [3] Is the action barred by limitation? The statute in Missouri limits actions of this character to three years from the time the caiise of action arose. The accident occurred in March, 1911. An action was begun in May, 1911, in the circuit court of Jackson county, Mo. '['he plaintiff was nonsuited in June, 1913, and then brought the present action in May, 1914. That was within one year from the termination of the first suit, which is the time fixed by the local statute for renewing the litigation for the same cause after a dismissal or nonsuit. It is claimed that the first complaint was not upon the same cause of action upon which recovery is now sought; that in the first action there was no averment of a failure of the company in the performance of its duty as to a safe working place, or safe methods, but that the complaint proceeded exclusively upon the negligence of the company’s employés in the operation of its cars; and that, as more than three years had elapsed when the present action was brought, the statute had run. The cause of action set up in both complaints is the death of .Forgy by the wrongful act of the defendant. A mere amplification of the wrongful act, or a specification of the negligence with varying aspects, does not constitute a new cause of action, but simply an amplification of the same cause of action which would have been permitted by way of amendment of the original complaint upon application to the court. That being the case, the original action tolled the running of the statute. See Seaboard Air Line Ry. Co. v. Koennecke, 239 U. S. 352, 354, 36 Sup. Ct. 126, 60 L. Ed. 324; Seaboard Air Line Ry. v. Renn, 241 U. S. 290, 36 Sup. Ct. 567, 60 L. Ed. 1006; Crotty v. Chicago Great Western Ry. Co., 95 C. C. A. 91, 169 Fed. 593; First State Bank v. Haswell, 174 Fed. 209, 211, 98 C. C. A. 217. The judgment is affirmed.