50 Mo. App. 250 | Mo. Ct. App. | 1892
— This was an action by an employe-against his employer to recover damages for personal injuries on the theory of negligence. The plaintiff had a verdict and judgment in $2,000, the sum demanded in his petition, and the defendant prosecutes this, appeal.
The petition alleges that on March 24, 1890, and for a long time prior thereto, he was an employe of the defendant in what is known as the waterworks and pump-repairing department; that in connection with said department, and as a part thereof, the defendant was engaged in crushing rock; that plaintiff in the employment in which he was engaged was under the supervision and subject to the orders of one R. E. Tayman as foreman of pump repairs, who ordered him to the town of Pearl, in Illinois, to aid and assist in putting a new shaft and turntable in defendant’s stone crusher located at that place; that, while there, he was ordered by Tayman to assist other employes of defendant to remove from one position to another, as a part of the work to be done, a large iron wheel weighing about six thousand pounds; that he, and three other employes, under the directions of Tayman, were required to make said removal by hand without the aid of any appliances or machinery whatever; that the moving of said wheel to the place designated by Tayman required a change from one floor to another having a difference in elevation of five or six inches; that the plaintiff, with one coemploye on one side and two coemployes on the other side, undertook under-
The answer was a general denial, and a plea of contributory negligence, and there was a reply in the nature of a general denial of the new matter in the answer.
The evidence tended to show the following facts: The plaintiff, Henry Fogus, forty years of age, had been in the employ of the appellant about eleven years as assistant foreman of pump repairs under R. E. Tayman, general foreman of that department of the defendant’s business, which included the management and supervision of its stone crushers, of which there were two — one at Pearl, Illinois, and the other at Blue Springs, Missouri.
The plaintiff had charge of this business west of the Mississippi river, which included the stone crusher at Blue Springs, but was subject to the orders of Tayman, and might be required by the latter to perform duty at any point to which he might be called. In March, 1890, by direction of Tayman, Fogus (whose headquarters were at Slater, Missouri) was called to Pearl, Illinois, to assist in repairing the stone crusher
Prior to the participation of Fogus in the work to be done, the wheel had been lifted from its usual posi
The method adopted for moving the wheel was to-roll it by hand down an incline, one end of which rested on a block near that point of the floor where the wheel was to be placed, and the other end under the end of the pulley wheel. This incline was composed of' two two-inch planks, twelve inches wide, the planks lapping at a distance of about the half-way point between the extreme ends. The entire length of the incline was about eight feet, with a declivity of about one inch to the foot. The position of the men, while rolling the wheel, no special place having been assigned to any, was as follows: Tayman was in front of the wheel and facing it, holding to the rim of the fly wheel, one foot on either side of the incline. Fogus was on the fly-wheel side towards the front, holding by the spokes and the rim. Two other men were on the same side with Fogus, one near the center, the other at the rear; and the other two men were on the pulley-wheel side — front and rear. According to the defendant’s evidence, at the time the wheel was started the rim of' the fly wheel was resting on one of the timbers used to support the bearings, and the rim of the pulley wheel at the end of the decline that had been placed under it.
But the plaintiff’s evidence was to the effect that the entire weight of the wheel, before it was rolled forward, rested on the rim of the fly wheel; that the incline was so placed that, when the rim of the fly wheel was rolled off of its support, there was a drop of two or three inches of the entire wheel before the rim of the pulley wheel came in contact with the incline upon which it was to be rolled down, and that this was the point at which the wheel careened and fell. The defendant, on the contrary, contends that the wheel rested equally both upon the rim of the fly wheel and the rim of the pulley wheel; that there was no drop of the wheel at all when the rim of the fly wheel was-rolled off the timber upon which it rested; but that about two feet further down the incline there was an offset of two inches, caused by the lapping at that-point of the planks of which the incline was constructed; and that it was here, as the rim of the pulley wheel passed over this offset, that the men lost control of the wheel, and it fell. There was evidence to support both of these hypotheses.
The plaintiff also claims that he spoke to Mr. Tayman about its not being safe to handle the wheel in the way he was handling it; and that he (plaintiff) told him of other and better ways of handling it. This
Exclusive of the two matters just referred to, there is no substantial disagreement as to the facts of this case.
In addition to the official position that the plaintiff occupied in the service of the defendant and' his long service in the line of his employment, it is conceded by him that he is a man of skill and experience in such work, and was aware that it was attended by more or less danger, and that it had to be done, with much care and skill to avoid accidents.
There was no machinery or mechanical force used in effecting the wheel’s removal, and the only mechanical device employed was the incline already described. Everything pertaining to the means and appliances used in its removal was patent, open to easy observation, and was fully known to the plaintiff.
So long as the wheel was kept on a balance it could not fall. The center of the wheel’s gravity was a line passing through the points where the pulley wheel was bolted to the fly wheel. Two men could easily have held it in balance if it were resting on the rim of the pulley wheel on a level plane. In fact, in such a position it would nearly have balanced itself. The only danger attending its removal was the failure of the men to control the momentum and hold it in balance; a failure to do this necessarily resulted in its falling. But this failure grew out of the fact that the group of men on either side, in order to prevent it from careening on them, were continually pushing it against the others, so that the two groups were necessarily pushing against each other.
The method employed, and the means and appliances used, were the usual and customary ones hitherto
I. The first assignment of error is that the court should have withdrawn the case from the jury. This assignment is not based on the proposition that there was no evidence of negligence on the part of the defendant, nor 'could it have been; for the plaintiff gave distinct evidence tending to show that the method of moving the wheel adopted by the defendant’s foreman was dangerous and improper, and one of his witnesses went to far as to say that he would discharge a man who should undertake to do that work in that way. It is true that this evidence was rebutted by evidence adduced by the defendant, but it left a plain case for the jury on the question of the negligence of the defendant.
Then, as to the question as to the contributory negligence of the plaintiff, it does indeed appear that the plaintiff was an expert in the doing of work of this kind; that he was the defendant’s pump repairer at Slater, Missouri, and was sub-foreman under the command' of the defendant’s foreman Tayman, who was in charge of the removing of the wheel at the time of the accident; that he (plaintiff) adopted a different method in doing such work where he was in command; that he and another of those assisting in removing this particular wheel suggested the danger of the method adopted by Tayman, but that Tayman overruled the suggestion. If, under these circumstances, the danger of the method adopted by Tayman was so glaring that even a servant in a position of subordination and
The legal principles governing the liability of the master to the servant, and governing the contributory negligence of the servant in such a state of facts, have been very clearly laid down by our supreme court in three cases, and are happily not subject to any question or dispute. The first of these cases is Keegan v. Kavanaugh, 62 Mo. 230, 233, where the court, speaking through Judge Napton, said: “It is undoubtedly the duty of a master, where his servant is engaged in hazardous employments, to see that every reasonable precaution on his part to insure safety is observed. The primary duty of the servant is obedience, and it is not to be expected that he will, upon mere imaginary danger of which he may be conscious, assert his right to relinquish his employment. He naturally looks to his employer for the observance of all reasonable and proper precaution, and his continuance in the service, when such precautions have not been observed, is; rather to be attributed to confidence reposed in those to whose superior judgment he yields. If the risk is such as to be perfectly obvious to the sense of any man, whether servant or master, then the servant assumes the risk. But if it is a case where no such obvious
This doctrine was distinctly reaffirmed in Stephens v. Railroad, 96 Mo. 207, 212. In that case Judge Black, giving the opinion of the court, said: “It is held in many cases where the servant knowingly incurs the risk of defective machinery, still, if not so defective as to threaten immediate injury, it is for the jury to determine whether there was negligence on his part.” And further on he uses this language: “And more to the point, in this case, a recent test-book uses this language: ‘If, therefore, the master orders the servant into a situation of danger, and he obeys, and is thereby injured, the law will not deny him a remedy against the master, on the ground of contributory negligence, unless the danger was so glaring, that no prudent man would have entered into it, even where like the servant he was not entirely free to choose.’” 2 Thompson on Negligence, 975. The learned judge then adds the following statement of doctrine: “There may be cases where the servant is ordered to do a particular act, and the order is so unreasonable, and the act so manifestly dangerous to life and limb, that the court, on the evidence, should declare the servant guilty of negligence in obeying the order of the master, and should direct a nonsuit. The general rule, however, is, that the question is one for the jury. It cannot be said that the servant and master are on an equal footing, even where they have equal knowledge of the danger. To so say is against common experience, and in disregard of the fact that the servant occupies a position subordinate to the master; the primary duty of the servant is obedience. It does not
The case before us is undoubtedly closer on its facts than either of the cases just cited, because the plaintiff was admittedly an expert in the doing of that kind of work, frequently did that kind of work at his place of employment in Missouri, and did it in a different way from that in which the defendant’s foreman, Tayman, undertook to do it in the present instance. That he appreciated the danger of doing it as the defendant’s foreman undertook to do it, is shown by the further fact that he objected to that method of doing it on the ground that it was dangerous, but was overruled by the defendant’s foreman. But it must be kept in mind that he was m a subordinate position to that of Tayman, the defendant’s 'foreman; that, as to Tayman, his position was that of a servant toward a master, in which his primary duty was obedience; that he had been called from his own place of work in Missouri to Tayman’s place of work in Illinois to assist Tayman in the performance of this undertaking; that he knew that Tayman had often done this particular work before and in that particular place, — all of which would naturally incline him to yield his judgment to that of Tayman, and to submit to be overruled by the latter and to accept the danger, rather than to disobey the order of Tayman and incur the risk of losing his situation. We are, therefore, of opinion that the court committed no error in declining to nonsuit the plaintiff on the ground of contributory negligence.
II. The next assignment of error relates to a number of rulings of the court in admitting against the objection of the defendant, evidence tending to show that the wheel could have been moved by other and safer methods than that adopted by the defendant’s
III. The defendant in its direct examination of Mr. Tayman, its foreman, who had control of the work at the time when the plaintiff was injured, asked him this question: “Did you suggest a plan to Mr. Fogus [plaintiff], or Fogus to you, by which the wheel could be moved?” This question was ruled .out as leading, on the objection of plaintiff, and the defendant excepted. Assuming that this question was improperly ruled out as leading, we nevertheless do not find in this ruling a ground of reversing the judgment; for the reason that, as the defendant made no distinct tender of evidence under the particular head, we cannot .see what it was that it proposed to prove. If we could see that, in consequence of this ruling any evidence material to the defense had been kept out, we might hold it sufficient ground for reversing the judgment; but it appears, on an examination of the record, that
IV. The next assignment of error relates to the' giving of plaintiff's instruction, numbered 2, which was-as follows: “2. If the jury believe from the evidence in the cause that R. E. Tayman was, at the time stated in the petition, the agent and servant of the defendant, and foreman of the men engaged in doing-the work therein described; and that as such foreman, the said Tayman had authority and control of the work to be done; and that plaintiff was, at the time, subject, to the orders and directions of the said foreman in doing the work in which he was thus engaged; and that the plaintiff, in obedience to the orders and directions of said Tayman, assisted in the removal of the balance wheel described in the testimony; and that whilst so engaged was hurt, injured and crippled, as. alleged in his petition, by reason of the neglect and. failure upon the part of defendant to furnish a sufficient number of competent men and reasonably safe and sufficient machinery and appliances with which to-do the work in which they were then engaged; and that the plaintiff was, at the time, in his proper place, and was not guilty of any negligence or carelessness on his part contributing thereto; and that plaintiff was-exercising ordinary care and prudence at the time he was injured, then the jury will find for the plaintiff, and assess his damages at such sum as the evidence in the cause shows him to be entitled to, not exceeding-the sum of $2,000.”
The first objection to this instruction is that it submits to the jury the question of the competency of the coemployes of the plaintiff, which question was not in issue under the pleadings. We do not so understand
The next objection to this instruction seems to us. still more refined. It is that the instruction virtually tells the jury that the failure of the appellant to furnish reasonably safe “ machinery” was negligence, if the respondent was injured because of appellant’s failure to furnish such machinery; and it is argued that this was wrong because the defendant furnished no machinery at all. The petition charges that the defendant furnished no machinery at all for the moving of the wheel, and it predicates negligence on the fact that it failed to furnish “proper appliances and machinery,”
A third criticism upon the instruction is that it is wholly inconsistent with the instruction given for the appellant on the same issue. We think it a sufficient answer to this objection to say that we regard it as a good instruction; from which it follows that if the court gave, in behalf of the defendant, an inconsistent instruction on the s^me issue, that was an error in favor of the defendant which the defendant cannot make a ground of reversing the judgment.
V. The next assignment of error relates to the giving of the following instruction: “3. Although the jury may believe from the evidence in the cause that the work of removing the wheel described by the witnesses was unsafe and dangerous in the manner in which it was done, and that plaintiff was apprised of this fact, yet if you shall further find from the evidence in the cause that the danger and hazard of the undertaking was not of such an imminent and threatening character as to prevent a reasonably prudent person from undertaking the same, then the plaintiff did not assume to do the said work at his own peril, and was only required to exercise ordinary care and prudence incident to the situation and the character of the work required.”
The objection to this instruction is that all the evidence showed, and there is no reasonable inference to the contrary, that no risk or element of danger, connected with the moving of the wheel, was unnoticed or unknown to the plaintiff. Admitting this to be true, it
VI. The next assignment of error relates to the giving of the following instruction at the request of the plaintiff: “5. The jury is instructed that, although the plaintiff might have believed that the appliances-furnished by defendant for removing the wheel were-not as suitable and safe as they ought to have been, nevertheless, to constitute the act of plaintiff, in assisting to remove the said wheel, contributory negligence on his part, it must further appear to the satisfaction of the jury that the defective and dangerous character of the said appliances and machinery were so glaring that a man of ordinary prudence would not use them, and the jury should so find.”
This instruction is in substantial conformity with the doctrine laid down in the decisions of the supreme court already cited, and in the leading case of Conroy v. Iron Works, 60 Mo. 35, and many other cases following the doctrine of that case. The criticism to which it is subjected is not intelligible to us.
VII. The next assignment of error consists of an objection to the instruction, numbered 6, given at the request of the plaintiff, as follows: “6. The jury is instructed that the primary duty of a servant to his master is obedience, and that, although they may believe that plaintiff may have been apprised of the dangerous and insufficient character of the machinery and appliances furnished by defendant to do the work in which he was engaged, yet, if it shall further appear' to them satisfaction from the evidence that, after discovering said fact, he was assured that it was reason
This instruction is likewise drawn in conformity with the doctrine of the cases already referred to. But it is objected that it contains a hypothesis of which there was no evidence, and that the court should have ruled, as a matter of law, that the colloquy between the plaintiff and Tayman, the foreman and vice-principal of the defendant, did not amount to an assurance of safety. This would have been charging, upon a question of fact, and would for that reason have been error; and it would have been error for the further reason that such a conclusion of fact was not warranted upon the evidence of that colloquy. As to that colloquy the plaintiff testified: “I spoke to Mr. Tayman about it [the wheel] in the way he was handling it, and I told them that the best way to handle it was to get a block and rope and set it onto the floor, and slide it down off of this incline. He [Tayman] said it wasn’t any need. I said then we have better put an incline under the rim of the main balance wheel. He said it wasn’t no use. Mr. Bartholic said the same thing — that it wasn’t safe to do it that way. He [meaning Tayman] said it had been done that way before, and I supposed he knew what he was doing.” We have given the above quotation as furnished in the appellant’s abstract, but we find, upon referring to the record, that it is not correctly given. The statement in the record is as follows: “I spoke to Mr. Tayman about it not being safe to handle
The next objection to this instruction .has been answered several times in this opinion. The objection is that, if the colloquium above given could be construed as an assurance of safety, it was of no avail for that purpose, since it was in reference to a state of facts of which the respondent had full knowledge. We shall not go over the ground again for the purpose of answering this argument.
Equally untenable is the objection to this instruction that it was erroneous in submitting to the jury the question, who the plaintiff’s superior was. It cannot be assumed that the jury would drift into the mistake that the superior, intended by this instruction, referred to anyone else than Mr. Tayman who was described in the petition as the foreman of the defendant, and under whose orders the plaintiff was at the time when he assisted in doing the work. They might, it is argued, have drifted into the supposition that his superior was one Martin, another superior servant of the defendant, namely, its division superintendent and superintendent of bridges and buildings. We do not gather from the
VIII. The next assignment of error complains of the giving of the following instructions by the court of its own motion: “In accepting employment in the-service of defendant for the performance of the work stated in his petition, plaintiff assumed all of the ordinary dangers and hazards pertaining to such work; and should the jury find from the evidence that the injury sustained by plaintiff was the result of an accident, unmixed with any negligence of defendant, as explained in other instructions, liable to occur in the performance of the work plaintiff was engaged in at. the time of said accident, and was a risk incident thereto, — that is, a risk known or patent to plaintiff as pertaining to the work itself, — then the plaintiff cannot recover, and the jury should find for defendant.”
“If the jury find from the evidence that plaintiff' was aware of the risks and of the dangers attending
We do not see how any refinement .can extract a ground of complaint, or even of criticism, from these instructions. They are drawn in substantial conformity with the applicatory principles of law, founded in decisions of the,supreme court which we have already stated.
In addition to these, the court gave nine instructions at the request of the defendant. They were all drawn in terms very favorable to the defendant. The last was modified by the insertion of the language in parentheses, as follows: “If the jury believe from the evidence that the danger of an accident, by reason of the removal of the wheel in question in the manner plaintiff’s testimony represents it to have been moved, and the jury believes from the evidence it was moved in that way (was highly probable and reasonably certain), and that a danger so imminent was known to plaintiff, and plaintiff nevertheless undertook to remove said wheel in that manner, then it must be presumed that plaintiff assumed the risk of removing said wheel, and the verdict must be for defendant.”
We see no substantial error in this modification. Under the principles already stated, we are of opinion that the court could not instruct the jury that they
We have thus endeavored to go patiently over a long catalogue of objections, and we find no error in the record, and order that the judgment be affirmed.