145 Mo. App. 439 | Mo. Ct. App. | 1909
This is a suit for damages accrued to plaintiff on account of personal injuries alleged to have been inflicted upon him through defendant’s negligence while plaintiff was engaged in feeding a heeling machine in defendant’s shoe factory. The plaintiff recovered and the defendant appeals;
It appears that the plaintiff was a boy about fifteen years of age. He had had several months’ experience in feeding and operating a heeling machine in the defendant’s and other shoe factories; that is, he had worked for a number of months with a machine identical with the one on which he was injured and was entirely familiar with the construction and mode of operation. He applied to the defendant’s foreman for a position a day or two before he was injured and upon
The plaintiff was instructed to do what Thein bade him to do and to assist him in and about the operation of the machine in Thein’s charge. The machine was an appliance for the purpose of affixing heels to shoes in the course of manufacture. It was the duty of Thein to operate this machine by placing his foot upon a pedal thereby causing a plunger to strike the heel of the shoe resting in the machine and thus drive the nails essential to affix the heel thereto. It was the plaintiff’s duty to insert the heel into the machine with his hand. It appears that the two operated the machine together, each performing manual labor concurrently to that end.
"While the plaintiff was in the act of inserting a shoe heel for the purpose mentioned, Thein, the superior servant, placed his foot upon the pedal and caused the plunger or hammer to descend upon the heel, which act resulted in crushing plaintiff’s fingers between the heel and the sole of the shoe. A short time prior to receiving his injuries, the plaintiff informed Thein that he had. been feeding a heeling machine at another factory and that they only heeled about eighteen cases of shoes per day where he had been working; that he was accustomed to feed a machine in heeling eighteen cases a day. Thein replied, substantially, that the plaintiff would be required to work faster than that as they were accustomed to heeling and turning ont
The suit predicates, in part, upon the order of Thein to plaintiff to hurry up with the work and in part upon the fact that Thein negligently operated the machine at a rate of speed much faster than the plaintiff was accustomed to attend the same. The court refused to peremptorily direct a verdict for the defendant and referred the case to the jury under instructions permitting a recovery for plaintiff if the jury found that he was exercising due care on his part and that he received his injury through the negligence of Thein in ordering him to hurry up five minutes before his injury and in operating the machine more rapidly than the plaintiff was accustomed to work.
It is argued here on the part of the defendant that the evidence conclusively shows plaintiff received his injuries through the negligence of Thein in his capacity as a fellow-servant of the plaintiff by the manual act of starting the machine while the plaintiff was inserting a shoe heel, and that there is no evidence tending to show that plaintiff received his injury through the negligence of Thein, the superior servant, in respect to any of the absolute duties of the master. It is said, too, that, conceding Thein to have been the vice-principal, the mere order to hurry given five minutes before in no manner breached the obligation of the master to exercise ordinary care for the plaintiff’s safety.
Now, as a general proposition, the master, the superior servant, or vice-principal, may give such usual and customary orders in and about the business he is
Indeed on this question the authorities go to the effect that a mere order to hurry up with the task is not negligence unless it tends to subject the party to an extraordinary hazard; that is, a hazard not ordinarily incident to the employment, or operates to excite, distract or disconcert the employee to such an extent as renders him unable to exercise due care for his own safety. [Sambos v. Cleveland, Cincinnati, etc., R. R. Co., 134 Mo. App. 460, 467; Saller v. Friedman Bros.’ Shoe Co., 130 Mo. App. 712.]
Now there is not a word in the testimony of this case to the effect that the plaintiff became in the- least excited, distracted or disconcerted on account of the order referred to and certainly nothing appears to the effect that his injury was received through any extraordinary hazard in the operation of the machine. Indeed, we are unable to perceive any causal connection whatever between the order to hurry with the work and the injury which plaintiff received five minutes thereafter. In truth, the injury befell him because his movement lagged and not because he was hurrying. Had he inserted the heels in the machine as fast as his co-employee, Thein, operated the same, the injury would not have occurred. Now, the rule of liability announced in the plaintiff’s first instruction is to the effect that the defendant should be held to respond for the injury if Thein directed the operation of the machine and operated sand machine faster than the jury might believe from the evidence
Indeed it is true there are cases in this State
In Fogarty v. St. Louis Transfer Co., supra, the Supreme Court pointed out the fact that although the language employed in the opinion in the Dayharsh case purported a broader ground of liability, the judgment of the court therein should be hereafter treated as resting on the doctrine of the safe place. The same may be said with respect to Hollweg v. Bell Tel. Co., as was recently pointed out by Judge Goode in McIntyre v. Tebbetts, 140 Mo. App. 116, 120 S. W. 621. Notwithstanding what was said in those cases, the doctrine is firmly established in this State, with respect to the master’s liability asserted on the grounds of negligence in a servant occupying a dual capacity, to the effect that it is the character of the act and not the rank of the servant which determines the liability or non-liability in a given instance. [Fogarty v. Transfer Co., 180 Mo. 490; Bane v. Irwin, 172 Mo. 306; Rigsby v. Oil Well Supply Co., 115 Mo. App. 297; McIntyre v. Tebbetts, 140 Mo. App. 116; Baltimore & Ohio R. R. v. Baugh, 149 U. S. 368.]
Of course, this doctrine is limited in its application to those cases where there is no breach of a positive duty on the part of the master. There are certain non
Among these non-delegable duties of the master is the duty to furnish the servant a reasonably safe place in which to work and reasonably safe appliances with which to work; good and reasonable rules to govern employment, competent fellow-servants, and, it seems, too, in Missouri, though not generally, the doctrine obtains, to the effect that it is the personal non-delegable duty of the master to direct and control the work, and, therefore, if he gives one servant power and authority to direct other servants where to work and how to work and Avhat to do in and about the work, the master thus commits to such servant the performance of an absolute non-delegable duty, which rests upon himself. [Miller v. R. R., 109 Mo. 357; Schroeder v. C. & A. R. R. Co., 108 Mo. 322.]
Therefore, the plaintiff is entitled to recover itr this case only on its appearing that he received his injury as a result of the negligence of Thein, the superior-servant, in exercising the authority of the master, separate and apart from the performance of the manual act of the common employment, unless such manual act;
The judgment should be reversed.