McCaffrey v. Tamm Bros. Glue Co., 143 Mo. App. 24

McCaffrey v. Tamm Bros. Glue Co.

143 Mo. App. 24 | Mo. Ct. App. | 1909

GOODE, J.

This plaintiff was hurt while workng for defendant in its factory and recovered judgment in the present action upon the verdict of a jury; whereupon, after proper motions, an appeal was taken. Among the tasks of the factory was sacking hair and loading it on wagons for shipment. Plaintiff had worked in the .establishment for eight years at the time of the *28accident, his job being to assort hair, see it was ready for the market and sack and load it on wagons when a load was called for. As many sacks would be piled on a wagon as could be, and after the load was finished, a rope would be drawn over the top of the sacks and tied to the front and rear of the wagon, so as to hold the sacks in place and prevent them from dropping in consequence of the motion of the wagon. Plaintiff testified he had nothing to do with the wagons and team or anything except hair; but there was testimony going to show he was in the habit of notifying defendant’s superintendent or manager when anything was out of repair about a wagon or harness, and was expected to do so. As far as the case is developed in the present record, the employees of defendant who figure in it do not appear to have had different lines of duty so rigidly marked off that nothing was expected of them outside prescribed and definite tasks, though each one worked, in the main, at such a task, lending a hand occasionally at a different kind of work. Archie Stepto is a negro who worked in the factory, usually in the warehouse, but occasionally he was sent out with a team. He says whenever the work was rushing he would take out a team^ and wagon; any team which happened to be standing in the stable. He had worked for the company eight years and during that time had driven a team off and on. John Crist was another employee who worked “in the hair” he said, and was an assistant to McCaffrey, the plaintiff. Richard Minkie testified he was a salesman, a sort of yard man, not a superintendent and-never had been; that he did not have any particular charge of the teams in the yards or the wagons. But there was testimony he was superintendent, general yard foreman, and had charge of the wagons, teams and teamsters. One morning he ordered Stepto to take a wagon and team, “go down, get a load of hair” and take it to Glencoe’s, wherever that may be. Stepto hitched a team to a glue stock wagon; *29Minlde weighed it and Stepto drove into the yard of the factory and asked plaintiff for a load of hair. The testimony for plaintiff goes to show he was expected to be expeditious and even hasty in loading the Avagon. Stepto was in the wagon bed to receive the sacks as Crist and plaintiff threw them to him. After the pile had been completed, the men attempted to tie the sacks on the wagon, and in doing so the accident occurred in which plaintiff was hurt. The process of tying was styled “booming,” and consisted, as said, in drawing a rope, fastened to some part of the . front of the wagon, over the top of the sacks down to the rear part of the wagon and tying it there, either to the axle, or to two bars which projected on either side of the Avagon bed and to which a chain, which held up the hind-gate, was attached at the ends, or to rings fastened in the ends of these bars, or to said chain itself. This chain stretched across the back of the hind-gate,, and was fastened at each end in rings whiclj hung on the bars which projected from the side of the wagon. The primary use of the chain was to hold up the hind-gate, and one point made against the judgment is that it never was intended to be used for such a purpose as M'cCaffréy used it for Avhen he tied the rope to it, and therefore he assumed the risk of injury or was negligent when he used it for that purpose. In connection with this contention it is insisted the proper way to tie or “boom” the load, was to fasten the rope to the rear axle or to the rings in the bars at either end of the Ayagon bed. It may be said right here, there was no part of the wagon which had been designed for the express purpose of having a rope fastened to it to hold loads on; there was no appliance of that kind, though there were several parts of the wagon to which a rope might be tied to keep a load in place, and, in fact, was tied. There was testimony the rope had been fastened to the hind-gáte chain for eight years, Avith the knowledge of defend*30ant’s foreman and superintendent, and from this testimony the jury might infer defendant had sanctioned that usage. We hold further that if defendant had tolerated this method of holding the load in place, it was hound to use ordinary care to see the chain was strong enough for the purpose and was kept in good repair. A master who sanctions the continuous use of an appliance by his employees for a purpose different from the one it was designed for, is bound to exercise care to have the appliance reasonably safe for the employee’s use in this novel purpose. [1 Labatt, Master & Servant, sec. 28; Young v. Railroad, 69 N. H. 356; Dunn v. Railroad, 107 Fed. 666.] To continue the narrative of the facts: When plaintiff, after running the rope through the hind-gate chain, pulled on it to draw it taut, the chain parted and the load fell on and injured him. He testified he alone was pulling at the time and Stepto and Orist were on the load; but Stepto testified all three were on the ground and pulling with plaintiff. The chain parted because it had broken before and had been tied either with strings or wires. The witnesses disagreed about when and how it had been repaired. Crist testified that after the wagon was driven into the yard, Stepto took some strings and tied the parts of the chain together; but Stepto testified the chain was not tied with strings but with wires, was tied thus when he got the wagon from the shed and he did not know who tied it, or when; that he told plaintiff about its being tied with wires and warned him while he was pulling on the rope the wires would break; but this testimony was disputed. The weight of the evidence goes to show Stepto tied the chain with strings just before the wagon was loaded.

The negligence counted on in the petition was permitting a wagon to be loaded “which was not equipped with the customary strong and substantial chain appliance; but instead ... a wagon *31which had. a defective and broken chain, having a portion of insecure rope substituted for the portion of broken chain.” If defendant was to blame for the accident, it was in consequence of furnishing for plaintiff’s use a chain tied with strings or wires so weak they would not hold against the tension of the rope; for if the chain had been left with the two ends dangling, instead of being tied together, plaintiff would not have drawn the rope against it and would have escaped injury. It will be noticed the main averment of the petition imports that defendant customarily furnished wagons with chains which were strong enough to tie to; hence negligence in providing appliances unsafe for plaintiff’s use from the first, is excluded, and the only negligence counted on is providing one in the particular instance that had become unsafe; in other words, was out of repair. But that any employee of defendant knew this, was not alleged; and that any but Stepto knew it, was not proved. Neither was it proved some responsible employee or officer of defendant — foreman, superintendent or manager — would have known the fact by reasonable care. There is no proof of a regular and systematic inspection of vehicles in defendant’s establishment before they were sent out for use, and which would have detected the weakness of the chain, if carefully made. Neither was there proof the business was of such magnitude, or the machinery used so dangerous, as to call for inspections of that kind. For aught shown the condition of hind-gate chains on the wagons was so open and obvious, and the number of wagons in use so few, that employees who tied to the chains might have been left to judge whether they were in safe repair, without requiring special inspections. [1 Labatt, Master & Servant, sec. 154; Wachsmith v. Co., 118 Mich. 275.] Defendant was bound to use ordinary care to keep'the chains in reasonably good order, and we find nothing in proof indicating this duty was violated in the particular instance — none to show defendant knew *32the chain was out of repair or in reason ought to have known it was, and hence was affected with constructive notice. [Covey v. Railroad, 86 Mo. 635; Flynn v. Bridge Co., 42 Mo. App. 529.] Defendant would have been answerable to plaintiff on proof - that the chain was in bad repair or had been long enough for defendant to have known the fact by due care, and if defendant ought to have anticipated mischief from its condition. In those contingencies defendant’s neglect would have been the proximate cause of the accident. But the evidence fell short of proving such matters.

If the testimony of Crist was true, and in a measure it was corroborated by other witnesses, and Stepto tied the chain with strings when he drove into the yard, or if Stepto alone knew the chain was unsafe and insecurely tied and failed to secure it or report the defect, then defendant is not liable; for the reason that the injury -was caused by Stepto’s negligence and he and plaintiff were fellow-servants. In our opinion there is no doubt they were fellow-servants, as they were engaged by the same master in the prosecution of the same enterprise and common duty; they were both at work at the time getting out a load of hair and their ordinary tasks had reference to the same ends.

No instructions were given for plaintiff submitting to the jury a theory of recovery, and after much reflection upon the case, we think there is no valid ground on which he can recover.

The judgment is reversed.

All concur.