165 Mo. App. 55 | Mo. Ct. App. | 1912
This- is a suit for damages accrued to plaintiff, under the wrongful death statute, through the negligence of defendants. Plaintiff recovered and defendants prosecute the appeal.
Plaintiff’s husband, Walter Capehardt, came to his death by means of a hayfork falling upon him while in the service of defendants and engaged in the line of his duty in unloading a load of hay. The evidence tends to prove that the two defendants jointly operated a farm in Crawford county, and that plaintiff’s husband was in their employ as a farm hand at the time of his injury and death. It is argued that, while the evidence amply supports the finding that defendant Paul J. Murta was the employer of plaintiff’s husband, it is insufficient to sustain the judgment against his codefendant, Samuel Murta, touching the same relation, but we do not accede to this view. It appears that defendant Samuel Murta owned the farm of 411 acres, in Crawford county, but resided in the city of St. Louis. In the early part of 1906, Samuel Murta placed his nephew, Paul J. Murta, who was then a youth seventeen years of age, in charge, of the farm, under some kind of an arrangement for a division of the net profits. While the precise relation Samuel Murta sustained toward the operation and control of the farm is not conclusively shown, there
The more important question in the case and that upon which particular stress is laid relates to the. proof of negligence against defendants. At the time of his injury, plaintiff’s husband was upon a load of hay operating a hayfork affixed to the end of a rope, suspended about twenty-five feet above on a rigging which operates on a track and carries the hay into the barn. The hayfork was suspended from above - by means of a new manila rope, said to be one inch in diameter. This rope was passed through, and made fast in an eye attached to the rail, which ran beneath the cone of the roof of the barn. Because of the insecure manner in which the rope was fastened after passing through the eye, the hayfork, instead of responding to the jerk of the trip rope in the hands of Capehardt on the load of hay, fell upon his neck and occasioned his subsequent death. In other words, upon Capehardt pulling down upon a small rope, known as the trip rope, the knot or fastening on the inch rope, which suspended the pully and hayfork, gave way at the place where it passed through the eye in the rigging above and precipitated the fork together with the rope upon Capehardt in such a manner as to' occasion his death.
The petition describes the situation and sets forth a number of specific acts of negligence on the part of defendants concerning the condition of the rope and the knot therein and their omission to furnish an arrangement of sufficient strength, properly inspect the same, etc., etc. Among other things it is charged that defendant omitted to exercise ordinary care in respect
But it is argued one witness, Carey, testified that Capehardt himself .refastened the rope on the Monday preceding his injury on Wednesday, and that the fastening made under the directions of Paul J. Murta by Carey the Saturday before is beside the case. It is said that in view of this uncontradicted testimony, of Carey, to the effect that Capehardt fastened the rope on Monday, plaintiff’s husband should be treated as having assumed the risk of injury which resulted from his own fault in maldng an insecure fastening. It is unnecessary to examine the suggestion of assumed risk predicated on such uncontradicted testimony, for the question is not in the case. The argument assumes a false predicate to the effect that Carey’s testimony touching this matter was uncontradicted. In rebuttal,
To the end of showing that both defendants were engaged jointly in operating the farm, plaintiff introduced evidence tending to prove that Samuel Murta paid some of the farm hands in cash for labor performed thereon. One witness testified touching this matter that Samuel Murta paid him cash for his labor several times. He was then asked when such payments were made to him and in answer to this question said, “It was during two different winters that I worked there. I think four or five years ago. ’ ’ This evidence was objected to, and it is argued It was improper because, if five years before, then it antedated the arrangement under which the two ’Murtas were operating the farm. But the witness immediately
We have examined other arguments advanced-concerning objections to tbe testimony as well as those leveled against tbe instructions but find them without sufficient merit to warrant discussion in tbe opinion. Tbe judgment should be affirmed. It is so ordered.