159 Mo. App. 639 | Mo. Ct. App. | 1911
(after stating the facts). — I. In support of its contention that the demurrer to the evidence should have been sustained, defendant first' asserts that Erschen was a fellow-servant of the plaintiff at the time of the latters injury. Whether he was a fellow-servant or a vice-principal was a question for the jury. [Radtke v. Basket & Box Co., 229 Mo. 1, 24, 129 S. W. 508.] The proof discloses that the master mechanic ordered plaintiff to work under Erschen and that on all repair jobs within his jurisdiction Erschen had exercised superintendence and control over the men working with him. In the absence of countervailing evidence we deem this proof sufficient to justify the inference that Erschen was vested by defendant with the power of superintending control over plaintiff, and that was sufficient to constitute him a vice-principal of the defendant. [Shearman & Redfield on Negligence (5 Ed.), sec. 230; Miller v. Mo. Pac. Ry. Co., 109 Mo. 350, 357, 19 S. W. 58; Smith v. Am. Car & Fdry. Co., 122 Mo. App. 610, 616, 99 S. W. 790; Schmeizer v. Furniture Co., 134 Mo. App. 493, 498, 114 S. W. 1043.]
II. But, further asserts the defendant, if Erschen was a vice-principal and not a fellow-servant, still, under the dual capacity rule the defendant was not liable for Erschen’s negligence in this case. The ‘ ‘ dual capacity” rule prevails in this state. [Fogarty v. Transfer Co., 180 Mo. 490, 79 S. W. 664; Radtke v. Basket & Box Co., 229 Mo. 1, 23, 129 S. W. 508.]
Thus understood, we do not see how the application of the dual capacity rule can relieve defendant from liability in this case. The negligence charged here is in the furnishing by Erschen, the vice-principal, of an improper appliance, and in directing that the work be done with it, and the evidence sustains the charge. It was the duty of the defendant to exercise reasonable care to furnish appliances for its servants in the performance of their duties which are reasonably safe, suitable and fit for the designed use. [Gutridge v. The Mo. Pac. Ry. Co., 105 Mo. 520, 525, 16 S. W. 943; Nicholds v. Plate Glass Co., 126 Mo. 55, 64, 28 S. W. 991; Craig v. Chicago & Alton Ry. Co., 54 Mo. App. 523, 526.] This duty was an absolute and personal one. [Dutzi v. Greisel, 23 Mo. App. 676, 683; Herdler v. Buck Stove & Range Co., 136 Mo. 3, 15, 37 S. W. 115; Rodney v. The St. Louis Southwestern Ry. Co., 127 Mo. 676, 689, 28 S. W. 887, 30 S. W. 150.] It was then one which was vested in Erschen as vice-principal and for the negligent exer
But the defendant urges that it had provided a four-chain apparatus and it was safe and suitable and in the custody of Erschen; that in rendering the sufficient apparatus available to Erschen the defendant performed its entire duty, and that his selection of an unsafe apparatus when there was a safe one available was the act of a mere fellow-servant for which defendant was not liable. We are not satisfied that on this occasion the four-chain apparatus was available. The only evidence in that respect is that always before it had been used and that Erschen had charge of it; but on this occasion Erschen the sole custodian of it failed to produce it when required and said he did not know where it was. But plaintiff makes no point that the evidence was deficient in that respect and we will assume that in the proper storage room of defendant’s foundry there were two appliances, one safe and the other unsafe, both equally available to Erschen, and that he selected and produced the unsafe one. Did he in thus selecting the unsafe one and acting concerning it as the evidence discloses that he did, act as a fellow-servant or vice-principal? In support of its contention that he acted as a mere fellow-servant the defendant cites Forbes v. Dunnavant, 198 Mo. 193, 95 S. W. 934, where the court reached the conclusion that where the master buys a mass of raw material, some bad and some good, a result incident to all buying by the quantity in the market, and entrusted the selection out of this mass to carpenters employed to build the scaffold therewith, if one of said carpenters selected a bad board, it was the act of a fellow-servant for which the master would not be responsible. That is to say, that the master might trust the servant to perform the ordinary and simple duties incident to the servant’s employment and resting upon the servant’s
It may bé added, too that where, as here, one in authority produces a single appliance and expressly or impliedly directs the men to use it, there is involved something more than would a selection by a mere servant. In the latter case the co-servants would have some discretion to reject, to refuse, to go after the appropriate appliance. In the former case the selection is blended with command, direction and assurance. The selection is an implied command to use, which the servant has a right to presume is given carefully, absent danger so obvious that a reasonable man would not risk it. We are satisfied too that where the vice-principal produces- only one appliance and directs it to be used, that is the only appliance which is “provided” in attempted compliance with the duty of the master. There may be others, but if they are not produced, especially where as here their whereabouts are unknown, they are not provided but remain unprovided.
We rule that defendant’s demurrer to the evidence was properly overruled.
III. Defendant contends that plaintiff’s first and main instruction is erroneous because it authorizes the jury to find for the plaintiff if they believe from the evidence that the facts predicated therein “directly contributed to cause plaintiff’s said injuries.” This instruction is set out at length in our statement of facts and need not be repeated here.
There is evidence in the case tending to show negligence on the part of defendant and evidence tending to show contributory negligence on the part of the
Plaintiff suggests that there is no evidence of contributory negligence in the case. We cannot agree to this. Plaintiff testified in effect that he was an experienced machinist, familiar with the proper manner of lifting the ‘ ‘ spider, ’ ’ and that he had seen the “spider” lifted and had helped to lift it, several times, always using the four-chain apparatus. One of his witnesses, a machinist, testified as an expert, that the spider could not be raised “with any degree of safety” by using the two-chain apparatus. The plaintiff testified as already noted that while the machine was being hoisted he asked Erschen where the four-chain apparatus was and that the latter said he did mot know and that “we could do it with this all right.” 'This evidence tended to prove that plaintiff worked
For the error in giving this instruction at plaintiff’s instance the judgment is reversed and the cause remanded.