209 Mo. 141 | Mo. | 1908
Tbis is an action for damages for personal injuries commenced in the circuit court of tbe city of St. Louis. At tbe close of tbe plaintiff’s case, tbe circuit court gave a peremptory instruction to find for tbe defendant and a verdict was accordingly returned. After an unsuccessful motion for a new trial, tbe cause was appealed to tbis court.
The petition alleges tbe incorporation of tbe defendant, and charges that it was engaged in tbe business of manufacturing street cars, and in carrying on its business it maintained large sheds, yards and railroad tracks, both in tbe yards and in tbe sheds, wherein cars were kept standing until they were ready to be taken out and delivered to purchasers; that for tbe purpose of moving the cars from place to place in tbe yards and sheds, tbe defendant bad a crew known- as a switching crew, composed of a motorman and switch-man; that tbe motorman ran what was known as a dummy, which was in fact an electric car, and that it was tbe duty of the switchman to give proper signals to the motorman, and it was the duty of tbe mo-rtorman to start and stop tbe dummy on receipt of these .signals; that in addition to having tbe duty of signaling to tbe motorman, tbe switchman was intrusted with tbe duty of coupling tbis dummy engine to new ears when they were ready to be taken out of tbe shed's, and
The answer was, first, a general denial; second, a plea of contributory negligence on the part of the plaintiff ; and, third, that any injuries sustained by the plaintiff were caused by the act of a fellow-servant of the plaintiff, and plaintiff assumed the risk of any negligence on the part of such employee or employees. The reply was a general denial of the new matter set up in the answer.
The evidence on the part of the plaintiff tended to prove that for some time before Ms injury, he had been employed as a car painter by the defendant in its car works, under a man by the name of Mehlin, who was the general paint foreman, having authority to hire and discharge men working as painters, about one hundred and fifty of whom°worked at the plant; that on the day he received the injuries of wMch he cQmplains, the plaintiff was directed by his superior in the paint department to work on the new car standing in one of the sheds; that in order to reach the windows from the edge of which he was ordered to remove the surplus putty, it became necessary for Mm to erect a little scaffold ; that he placed the trestles supporting the scaffold as best he could, not having a very good opportumty to place them on account of a pile of old scrap iron which was in the way; that as it was placed the trestle supporting the scaffold was near the side of the car, and as it afterwards turned out, it was too near to allow the step of the car to-clear it if the oar was moved, but plaintiff was not expecting the car to be moved, as it was not finished. That he had been at' work about three-quarters of an hour, and wMle working on tMs car, it was suddenly pulled away and he was knocked down and fell on a pile of iron and received a
I. The rule is firmly established in this State that a demurrer to the evidence admits every fact which the jurors may infer if the evidence were before them and should be sustained only when the evidence thus considered fails to make proof of some essential averment. [Rine v. Railroad, 100 Mo. 228; Myers v. Kansas City, 108 Mo. 480; Franke v. St. Louis, 110 Mo. 516; Moore v. Railroad, 194 Mo. 1, l. c. 9; Bender v. Railroad, 137 Mo. 240.]
"Were the plaintiff and the switchman, whose alleged negligence in pulling out the car to which the unfinished ear on which plaintiff was working was attached, without warning tp the plaintiff, thereby causing plaintiff’s injuries, fellow-servants so as to. exempt the defendant from said negligent act? We all agree that the rule which exempts the master from liability to one servant from the negligent act of a fellow-servant prevails in this State, but we think it must be conceded that the broad and sweeping rule announced in Farwell v. Railroad, 4 Metc. (Mass.) 49, has not met the approval of this court in many cases. As said by Judge Black in Parker v. Railroad, 109 Mo. l. c. 407, that rule “had but little more than been approved when courts and legislatures began a process, of cutting it down because of the gross injustice which it worked out in its application to the great enterprises of the day.” On the other hand, what is known as. the department rule has not been adopted in this State in all of the broadness for which many of its advocates, have contended. .Much of the difficulty has ¿risen from the inability of the courts to determine at all times whether, the employment was a common service and the employ
When we look for the underlying principle upon which all of these cases rest as exceptions to the general rule announced in Farwell’s case, it will perhaps be found as well stated in the separate opinion of Judge Black in Parker v. Railroad, 109 Mo. l. c. 409, as anywhere. As that rule prevailed in that case, it will bear repeating here: “Now, it being conceded, as it must be, that the master is liable to third persons for the negligent acts of his servants, it is difficult to see how public policy has much to do with the question as to who shall be deemed fellow-servants within the rule of exemption. The liability being admitted in ease a third person is injured, but denied in case a servant is injured by another servant, the denial in the latter case must stand on some peculiar relation between master and servant. This peculiar relation cannot be simply
But it is said that while those cases may have been properly decided they were all rendered in railway cases and the doctrine should not be extended to any other class of masters, and we are cited to a sentence in the opinion of Judge Black in the Parker case, in which he says: “Thus, the persons engaged in and about machine shops, foundries and the like are often strictly fellow-servants, though under and subject to the orders of different foremen.” But, this view ignores the other remarks of the learned judge in the beginning of that paragraph where he says that the general rule had been cut down by the courts “because of the gross injustice which it worked out in its application to the great enterprises of the day. ’ ’ We agree that servants of a common master working under different foremen, may be brought into such consociation and relation to each other that they would still be held to be fellow-servants within the meaning and modification of the general rule which was announced by Judge Black in Parker’s case, but we are unwilling to say
In our opinion, the plaintiff was not a fellow-servant with the switchman, whose negligent act, the evidence tended to show, was the cause of the plaintiff’s injuries, and if the court sustained the demurrer to the evidence on the ground that the switchman and plaintiff were fellow-servants, as is asserted by plaintiff, then it committed reversible error.'
II. But there is another view upon which the plaintiff was entitled to have his case submitted to the jury. It is the duty of the master to provide and maintain a reasonably safe place for his servant to work. [Wendler v. Furnishing Company, 165 Mo. 527; Herdler v. Stove & Range Co., 136 Mo. 3; Moore v. Railroad, 85 Mo. 588; Curtis v. McNair, 173 Mo. l. c. 280; Purcell v. Shoe Co., 187 Mo. l. c. 285.]
When then the defendant, through the paint boss, Mehlin, sent the plaintiff to work upon the unfinished car, on one of its tracks, it was its duty to provide against other cars running down against the car upon which he was working and to see that other cars which were pulled out were not attached to the car upon which he was working without giving him warning of its intention to move the said car. While the servant in entering the service of the master assumes the risks that ordinarily and usually are incident to the business being conducted by the master, the servant does not assume the risk arising from the master’s neglect to adopt suitable precaution for his safety. The duty of the master in this regard is a continuing one and it will not suffice to say that when plaintiff went to work on the ear it was a reasonably safe place. If the place was afterwards rendered unsafe by the negligent act
But it may be said that the switchman was not the vice-principal of the defendant in moving and directing the car to be moved whereby plaintiff was injured. On this point this court in Moore v. Railroad, 85 Mo. 588, approved the'doctrine laid down by Wood on Master and Servant, page 860, as follows: “Whenever the master delegates to another the performance of a duty to his servants, which the master has impliedly contracted to perform in- person, or which rests upon him as an absolute duty, he is liable for the manner in which that duty is performed by the middle man whom he has selected as his agent, and, to the extent of the discharge of those duties by the middle man, he stands in the place of the master, but as to all other matters he is a mere servant.” In that case, the plaintiff, Moore, was employed as a car repairer, and he was ordered by his foreman to repair the draw-head of one of the freight cars of the defendant company then standing with other freight ears upon the side track of the defendant, and was promised by the foreman that he would protect him while he was so employed in repairing the draw-head. Belying on the promise of the foreman, Moore undertook to repair the draw-head and while engaged thereat, an engine of the defendant came down upon the said side track and against the car standing thereon, and the
The danger of pulling this car upon which plaintiff was at work, without warning the plaintiff, is apparent from a statement of the facts, but the testimony in this case went further and tended to prove that it was the duty of the''defendant’s switchman, who was entrusted with the work of moving cars, to give the painters warning and see that no car was moved without affording them an opportunity to look out for their safety. Obviously it was a personal duty of the defendant to the plaintiff not to move the car without such warning, but the performance of this duty was entrusted to the switchman and the fact that the switchman was not a servant of high degree does not change or effect the responsibility of the defendant for the negligent manner in which that duty was performed. ■ The act of the switchman was the act of the defendant itself.
The views we have expressed have been approved in many other jurisdictions, notably in Railroad v. Fox, 31 Kan. 586; Railroad v. Hinzie, 82 Tex. 623; Railroad v. Triplett, 54 Ark. 289. We think the testimony
III. As to the plaintiff’s contributory negligence, we think it is obvious that the court had no right as a matter of law to declare that the plaintiff’s own negligence would bar his recovery. It was a question that should have been submitted to the jury under proper instructions. As to the defense of assumption of risks, what we have already said sufficiently indicates our view as to that. Certainly the evidence was not such as would have justified the court in taking the case from the jury.
The judgment is reversed and the cause is remanded for a new trial in accordance with the views herein expressed.