39 Mo. App. 424 | Mo. Ct. App. | 1890
delivered the opinion of the court.
This is an action . for the recovery of damages alleged to have been caused to the plaintiff, a laborer, by the negligence of the defendant’s foreman, or vice-principal, in directing or ordering the plaintiff: to go to work in a place which the foreman knew, or ought to have known, was, owing to surrounding circumstances, extra hazardous. The answer contained a general denial and the plea of contributory negligence. Upon a trial before a jury the plaintiff recovered a verdict for one thousand dollars, which, considering the plaintiff’s injuries, was moderate. The errors assigned are that the court admitted illegal evidence; refused to non-suit the plaintiff, as requested; refused to give proper instructions asked by the plaintiff; and erroneously instructed the jury of its own motion.
The testimony adduced by plaintiff tended to establish the following facts: He was a laborer in defendant’s employ, and, on the day of the accident, was engaged in splitting rock in the deepest portion of defendant’s quarry. The quarry at that place had on one side a nearly perpendicular wall of over fifty feet, and one of the defendant’s derrick masts was placed at some distance from the upper edge of that wall, the boom attached to it swinging over the quarry. Suspended on this boom was a boat or cab, which was usually loaded in the quarry with rock, and then hoisted by means of the derrick to the upper edge of the quarry, and there swung back to a car track of the
The testimony further tended to show that one Quinley was the defendant’s foreman directing and ordering the work to be done by the plaintiff, and a gang of about fifteen men, of whom plaintiff was one, and, though a subordinate foreman, was practically one of the head foremen, twm other foremen of equal rank with him being in charge of other gangs of men.
While the loaded boat was being hoisted from the quarry, at the date of the accident complained of, the plaintiff had retired to a place of safety, from which position, however, he could not see the edge of the quarry over which the boat had to swing. Quinley was standing on a ledge of rock on the further side of the quarry, from which he could see the moving boat, until it disappeared in swinging back above the upper edge. Near Quinley a steam drill was at work making considerable noise, so that his voice could not be heard at any distance. The plaintiff and several of his witnesses testified that, while this was the situation of things, Quinley by a motion of the hand indicated to the plaintiff that he should return to the rock which he had been splitting, and one witness testified that the motion was accompanied with the remark, “Everything is all right,
On this evidence, the defendant asked the court to declare the law that the plaintiff could not recover, which instruction the court refused to give. It is claimed that this was error because, under the evidence, Quinley was not the defendant’s vice-principal, in giving the order to plaintiff to return to work, because a motion of the hand could not be construed into an order, and because the plaintiff knew that his returning, prior to the return of the boat, was dangerous, and his encountering a known danger, even in obedience to a lawful order, was contributory negligence as a matter of law.
The plaintiff’s evidence, as above shown, tended to prove that Quinley had the control of the work in which the plaintiff was engaged, and was the person entrusted by the master with authority to direct him how, when and where it should be done. This evidence was sufficient under the more recent decisions in this state to constitute Quinley a vice-principal. Moore v. Railroad, 85 Mo. 588; McDermott v. Railroad, 87 Mo. 285; Dowling v. Allen, 88 Mo. 293; Hoke v. Railroad, 88 Mo. 360. The defendant’s counsel substantially concedes this, but claims that, although Quinley may have been a vice-principal in ordering the plaintiff when and how to work, he was not a vice-principal for the purpose of ordering him when to return to work, under circumstances where that question was regulated by the plaintiff’s own discretion. The reason for any such distinction is not apparent. If the plaintiff voluntarily and knowingly placed himself in an extra
The defendant asked numerous instructions. The court refused them all, but of its own motion instructed the jury as follows : “ The court instructs you, gentlemen of the jury, as follows: If you believe and find
“If you find from the evidence that said Quinley indicated by a wave of the hand for plaintiff to return to his work, and said Quinley intended by such wave of the hand to convey, and he thereby did convey, to plaintiff the idea that he should return to his work, then he ordered him to return to his work within the
“ On the other hand, however, if you find from the evidence in the cause that said Quinley gave no orders, either by word or act, for the plaintiff to return to work, but he resumed work on his own responsibility, then defendant is not liable, and you will return a verdict for defendant. If you find the issues for the plaintiff, you will assess his damages at such sum as you may find from the evidence he is entitled to, not to exceed twelve thousand dollars.
“In determining the amount of damages you will allow, you may take into consideration the nature and extent of plaintiff’s injuries, whether permanent or temporary,' as also his physical and mental sufferings.
‘ ‘ If you find from the evidence that plaintiff knew that the danger from the boat being hoisted had not passed, and, so knowing, he resumed his work, then the defendant is not liable, and you will so find even though you may further find that said Quinley gave the order for him to return to w ork as set out in these instructions.
“The burden of proof is on plaintiff in this case to satisfy your minds by a preponderance of the evidence of every fact necessary for him to recover as set out in these instructions, and if he has not done so you will find the issues for the defendant.”
The-question in this case is not whether the instructions refused presented proper propositions of law applicable to the evidence, but whether they were embodied in the charge given by the court to the jury. Roth the supreme court and this court have frequently decided that such is the true test in determining whether error has been committed in the refusal of instructions. Where the charge of the court to the jury, as in this case, is unobjectionable, and presents
We see no error in the court’s action upon the instructions. That part of the charge, which relates to the plaintiff’s contributory negligence,- is defective in not adding after the word “knew” the words “or had reasonable cause to believe,’’but as the predicate of reasonable cause to believe was contained in the former part of the instruction, the failure to repeat it at the close of the charge was necessarily harmless.
The plaintiff was asked whether, if he had remained in the place where he sought shelter, and had been there when the rock fell, he would have been struck by it. He answered this question in the negative. The question was objected to as calling for the opinion of the witness. The question was ill-advised, but since, under the conceded facts of this case it was a physical impossibility that the plaintiff could have been struck by the falling rock in any other place than where he actually was struck, we cannot see any possible prejudice resulting to the defendant from an answer to the question. Courts and juries are bound alike to take
All the judges concurring, the judgment is affirmed.