Dollar v. Ozark Engineering Co.

500 S.W.2d 727, 1973 Mo. App. LEXIS 1133
CourtMissouri Court of Appeals
DecidedOctober 15, 1973
DocketNo. 9453
StatusPublished
Cited by3 cases

This text of 500 S.W.2d 727 (Dollar v. Ozark Engineering Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dollar v. Ozark Engineering Co., 500 S.W.2d 727, 1973 Mo. App. LEXIS 1133 (Mo. Ct. App. 1973).

Opinion

BILLINGS, Judge.

Plaintiff Charlie Dollar was awarded damages in the sum of $38,000.00 for personal injuries by a Jasper County jury. Defendants’ after trial motions resulted in the court ordering a remittitur of $15,000.-00 [accepted by plaintiff] and a denial of judgment for defendants pursuant to their trial motions for a directed verdict and their alternative request for a new trial. In this appeal defendants contend plaintiff failed to make a submissible case of negligence and complain of plaintiff’s verdict directing instruction. We affirm.

In view of defendants’ first assignment of error and a sub-division of their second point, we recite the evidence in the light most favorable to the plaintiff with all reasonable inferences to be drawn [729]*729therefrom. We disregard defendants’ evidence except insofar as it aids plaintiff’s case. Lifritz v. Sears, Roebuck and Company, 472 S.W.2d 28 (Mo.App.1971).

Plaintiff, an ironworker, was a member of the crew of Hamilton Erection Company [hereinafter Hamilton] which had been employed to erect a television tower at Joplin, Missouri. In order to erect such a tower it is necessary to utilize the services of a crane to lift and position the base section of the tower. Once this task is completed Hamilton’s crew then proceed to add additional sections of tower. Hamilton’s superintendent, Clint Capps, rented a crane from Ozark Engineering Company [hereinafter Ozark], Ozark does not lease a crane without one of their operators and in connection with the television tower project defendant Rhodes, Ozark’s employee, was the crane operator. The charge for the crane and operator was the sum of $25.00 per hour.

The crane here involved was of the mobile variety in that it was mounted on the rear portion of a specially constructed truck, the cab of the crane rests on what is commonly called a. fifth-wheel and this permits 360 degree rotation of the crane when it is in use. The controls for operating the crane are located within the cab and the boom is affixed to the front portion of the crane. The crane had a 12½ ton capacity and was equipped with a boom of some 70 to 75 feet.

The base section of the tower, 85 to 90 feet in length and weighing approximately 4½ tons, was to be lifted by the crane to a near-vertical position and placed on a concrete center pier anchor. When in place the tower was to be held in position by the use of temporary guy wires which would extend from the tower to anchors.

The mobile unit was placed so that the truck part was headed in an opposite direction from the center pier with the crane facing the pier. For purpose of helping guide the tower onto the anchor an A-frame truck, equipped with a winch and cable, was positioned beyond the center pier.

Capps, in addition to directing the members of his crew in various tasks as the tower base was being lifted by the crane, also provided assistance to the crane operator by the use of standard hand signals since the operator’s view of the anchor was increasingly obscured as the section of tower neared the vertical position. Capps also used hand signals to aid the operator of the A-frame truck. Capps told defendant Rhodes to “watch his end of the operation” and he and his crew would watch other things around the job, including checking the balance of the crane to see that it did not get overbalanced as the lifting progressed.

As the tower base was lifted to an approximate 70 degree angle to the ground the superintendent noticed that the rear end of the crane platform (the front end of mobile unit) appeared to be a “little light” and not “sitting there steady.” Lifting of the tower was temporarily halted while Capps and defendant Rhodes discussed the situation. Rhodes suggested that counterweights be attached to the front end of the mobile unit and that a second A-frame truck, equipped with winch and cable, be utilized and available for assistance in the event the crane became over-balanced. Capps had his crew comply with these suggestions by attaching 3000 pounds of weight to the front of the mobile unit and positioning the second A-frame truck in front of the unit with a cable extended from the truck winch, across the cab of the crane, and affixed to the crane’s boom. This cable did not have tension on it but, as indicated, was available for use if required.

Vertical lifting and positioning of the tower on the anchor continued and as the crane held the tower atop the anchor (for a period of 10 to 20 minutes) the Hamilton crew chained the tower to the anchor and began rotating the tower so that it would be in proper alignment with guy wire an[730]*730chors. To string the temporary guy wires the second A-frame truck would be required and plaintiff was directed by Capps to disconnect its cable from the boom of the crane. Plaintiff mounted the cab of the crane and climbed up on the boom. As he removed the cable, the crane and tower shifted and “lurched” from side-to-side. Capps called to defendant Rhodes to "catch the swing” but since the operator was standing up and not seated at the crane’s controls he did not do so. Capps then yelled at plaintiff to get off of the crane and as plaintiff started to jump to the ground the crane again “lurched” as the tower fell, causing plaintiff to lose his balance as he jumped. Plaintiff’s injuries were sustained when he struck the ground.

Capps testified that when the tower and crane first shifted defendant Rhodes was still on the crane but was standing up and not in his seat; that when he yelled to Rhodes to “catch the swing” the operator either had to sit down and “grab it” or get off and that the operator chose the latter alternative. The superintendent said Rhodes was the first person to leave the crane once it started swinging and that since it did not shift any further than it did initially if Rhodes had caught the swing the tower would not have fallen. Capps also stated that if the swing of the crane had been locked it could not have shifted to begin with. When the tower fell it jerked the cable, that ran from the drum of the crane through the boom to the load, completely off of the drum and the crane spun around counter-clockwise on its base six or seven times.

An employee of the television station was observing the lifting of the tower base and he said that when the tower first started to tip the plaintiff was on the top of the crane and that at the time he did not see the operator in the crane.

Inspection of the crane following the fall of the tower did not reveal any mechanical defects or malfunctions. The crane was equipped with a “load” brake which holds a load once it has been lifted. To activate this brake the operator is required to press down on the brake with his foot and then turn “your heel down”. The boom or “swing” lock on the crane is operated by means of a hand brake. In addition, the crane is equipped with a “dog-lock” which is located at the base beneath the crane and when the crane is turned in a certain position a pin drops into a notch. In a crane of this type the operator has to sit down in order to operate the various hand and foot controls. Because of the lowness of the cab roof the operator, in getting out of the crane, has to slide out sideways much as one does in getting out of an automobile.

In support of their claim of lack of sub-missibility of negligence the defendants contend there is no evidence that defendant Rhodes abandoned the crane before the tower fell.

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Bluebook (online)
500 S.W.2d 727, 1973 Mo. App. LEXIS 1133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dollar-v-ozark-engineering-co-moctapp-1973.