Herbert v. Wiggins Ferry Co., 107 Mo. App. 287

107 Mo. App. 287 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts). — 1. Defendant insists that its instruction, in the nature of a demurrer to the evidence, at the close of all the evidence should have been sustained. The evidence shows that Herbert, Zeller, Schlichtig and Wagner were all ship carpenters of from twenty-five to thirty years experience and that all of them'had worked for the defendant for a number of years and were familiar with its shipyard, knew what material was on hand and available for erecting the scaffold, knew that there was on hand, from which they could have made a selection, an abundant supply of good and sufficient rope by which the wheel could have been held in place with the pit-mans on or off. They were as familiar with the work they were ordered to do as was the boss, knew how the scaffold should be erected and what was necessary to hold the wheel in place while they were dismantling it. The uncontradicted evidence shows that the work of erecting the scaffold and dismantling the wheel was not superintended by the boss but was undertaken by the carpenters themselves under a general order to erect a scaffold and dismantle the wheel. The evidence further shows that Schlichtig, one of the carpenters, selected the rope with which to hold the wheel in place and that the others consented to the use of this rope. The rope selected proved to be insufficient. It had the appearance of an old and worn rope. Its condition was known to Schlichtig and must have been known to the other carpenters who used it, hence there is no escaping the conclusion that Schlichtig was negligent in the selection of the rope, and the reasonable inference is that the other carpenters, including the deceased, were also negligent in making use of it after it had been selected by their coemployee, and it was conceded on the trial that for this act of negligence, in the selection of the rope, defendant was not liable. It seems to me that this concession puts an end to plaintiff’s case. The evidence shows that it was the breaking of the rope that caused the wheel to revolve and the scaffold to fall, that but for the fact an unsuitable rope was selected by Schlichtig the wheel could not have revolved and the scaffold would not have fallen. The breaking of the rope, therefore, was the proximate and efficient cause of the injury and the plaintiff can not recover. Brown v. Railway, 20 Mo. App. 222; Hicks v. Railway, 46 Mo. App. 304; Reed v. Railway, 50 Mo. App. 504; Kirkpatrick v. Railway, 71 Mo. App. 263; Klockenbrink v. Railroad, 81 Mo. App. 351; Killian v. Railway, 86 Mo. App. 473; Brash v. St. Louis, 161 Mo. 433; Dunn v. Railway, 98 Mo. 652; Holman v. Railroad, 62 Mo. 562; Stoneman v. Railroad, 58 Mo. 503. But, plaintiff contends that if the pitmans had been detached the rope would never have been broken. The evidence tends to sustain this contention and for the sake of the argument it may be conceded that the rope was strong enough to hold the wheel if the pitmans had been detached. 'With this concession the failure to detach the pitmans was not the proximate or direct cause of the injury but the remote cause, a cause that was brought into play by the negligence of Schlichtig in selecting an unsuitable rope to hold the wheel with the pitmans on, and furnishes no ground for complaint against the defendant. Stanley v. Railway, 114 Mo. 606.

2. It is contended that it was the duty of the boss to furnish the plaintiff’s husband a safe place to work, that he knew the pitmans, were on and that it was extra hazardous to work on the wheel without detaching them and it was Ms duty to have seen that they were taken off. The evidence does not show that the work was extra hazardous with the pitmans on; what it does show is that there was more strain on the rope used to hold the wheel with the pitmans on than there would have been if they had been removed. But it shows conclusively that there were ropes at hand, accessible to the men, which would have held the wheel with the pitmans on and which could not possibly have been broken by the wheel. The men knew where the ropes were and could have gotten them. They also knew as much about the strain on the wheel with the pitmans on as did the boss and were at liberty to take them off if they had chosen to do so. The four carpenters were ordered to erect the scaffold. They were experienced ship carpenters, as much so as was the boss. They were entirely competent to do the work they were ordered to do. They were not superintended in the work nor does the evidence show that there was any necessity that the work should have been superintended by the boss. They were told to make the scaffold good and strong. They might have taken the pitmans off if they had thought it necessary, if it was customary to remove them they knew of the custom and departed from it on their own volition for they had neither orders nor advice from the boss in respect to the pitmans, and whatever danger or increased risk there was by leaving them on was a risk which they assumed with full knowl- ■ edge of all the facts. As was said by Black, J., in Bowen v. Bailway, 95 Mo. 277, “A servant is not a mere machine, employed to drive a nail here or a spike there, where directed by the master or some one representing him. Many things involving the exercise of judgment may properly be left to the servant. Hence it has been held, where the master employs competent workmen, and provides suitable material for staging and intrusts the duty of erecting it to the workmen, as a part of the work which they are engaged to perform that he is not liable to one of the workmen for injuries resulting to one of them from the falling of the staging. The negligence in such cases resolves itself into negligence of a fellow-servant; and the principle has been applied under a variety of circumstances. Kelley v. Norcross, 121 Mass. 508; Killea v. Faxon, 125 Mass. 485; Armour v. Hahn, 111 U. S. 313; Pesehel v. Railroad, 62 Wis. 338.” See also Bohn v. Railway, 106 Mo. l. c. 429; Miller v. Railway, 109 Mo. l. c. 356; Roberts v. Tel. Co., 166 Mo. l. c. 378-79; Moore v. Railway, 146 Mo. l. c. 582; Prescott v. Engine Co., 176 Pa. St. 459; Ross v. Walker, 139 Pa. St. 42.

In Ross v. Walker, supra, it is said: “The master does not, insure his employees against each other, nor is he bound to supervise and direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass provided' for them; they must use their own judgments as to the manner of handling it, as to the sufficiency and stability of the scaffolding they erect for themselves, and the amount of burden to be put upon such structures. No employer could bear the burden of legal responsibility for every blunder or neglect on the part of each and all of his employees. The fact that one employee is more skillful than another, or has had greater experience, and is so deferred to by others, does not change his relation to his employer or to his fellows. Nor does a difference in rank or grade of service change the rule. When the character of the business requires it, the master is as much bound to provide his workmen with a reasonably competent, foreman as to provide them with tools, but in either case his liability ceases when he has made a suitable selection. He is neither bound to provide the best tools and machinery, nor the highest grade of skill in his foreman, but he is bound to provide that which is reasonably safe and sufficient in both cases, and having so done he has discharged his duty. What remains to be done is that each workman, whatever his rank or skill or experience, shall, with reasonable diligence • and intelligence, discharge his dnty towards his employer and his fellows.

“It is thus apparent that, whenever it is sought to hold the master liable for the act or neglect of his foreman, the question to be first considered is whether the negligence complained of relates to anything-which it was the duty of the principal to do. If it does, then the principal is liable; for he must see at his peril that his own obligations to his workmen are properly discharged. If it does not, he is not liable; for all his workmen are liable to each other for the consequences of their negligence, respectively, and he does not insure them against each other by the mere fact of employing them. ’ ’

If through carelessness or because of a mistake in judgment, the rope selected for use on this occasion was unsuitable for the purpose for which it was wanted or, if suitable, was so negligently or carelessly put upon the shaft as to be cut or weakened unnecessarily and the accident was due to either of these causes it is clear that plaintiff had no cause of action. It was the duty of the carpenters, to whom, was committed the task of wrecking the wheel, to select suitable timbers for the erection of the scaffold and to erect it in a safe and substantial manner and, knowing that the pitmans were on the wheel, it was their duty to select a rope suitable to hold the wheel in position in the condition in which they found the wheel when they undertook to wreck it or, if it was necessary to remove the pitmans to make the wheel safe it was their duty to have removed them, and for any neglect on the part of any of them or all of them to perform any of these things necessary to their safety, the defendant is not liable.

Judgment affirmed.

Reyburn and Goode, JJ., concur.