129 Mo. App. 107 | Mo. Ct. App. | 1908
While working for defendant plaintiff’s foot was badly mashed in an accident and this action was instituted to recover damages. Defendant is an incorporated company engaged in quarrying- stone and manufacturing stone products. It has a quarry and works at Elsberry, in Lincoln county, and the accident
Four charges of negligence are made in the petition, but as one of them was abandoned during the trial, we will omit it from the statement. The first act of negligence assigned is the failure of defendant to provide suitable guy ropes to support the gin pole while it was being raised. The second assignment is the failure of defendant properly to secure and block the smokestack as it lay on the boiler house while the workmen were raising the pole. The smokestack had been blocked by Feary, who testified he placed a two-inch block under the end which lay on the roof of the boiler house. The third assignment of error was placing the gin pole so it rested on the elevated tramway while being raised, and in a position too near the smokestack, thereby endangering the workmen who were to raise, first the pole and then the smokestack. We will dismiss the second and third assignments with the statement that we do not consider either the proximity of the pole to’ the smokestack or the inadequate blocking of the latter, was the proximate cause of the accident which was, unquestionably, due to the breaking of the rope. For aught that appears the stack would have remained securely on the roof until it was lifted, if it had not been thrown off in the manner stated; an occurrence due to the rope breaking while the workmen were pulling on it in an attempt to raise the pole. During the entire operation Eoy Pratt was present and Ivan Pratt, the president and general manager of the defendant company, came to the scene before the pole was raised and looked on, simply as a spectator, he said, the job being in charge of Feary. The upshot of Ivan Pratt’s testimony in this connection is that he knew nothing about such work and was curious to see it done, and therefore stood by, but exercised no superintendence over the f>ropiu"tv in Lire "jack until the-f alto purchase prfce~wfts
Two points are relied on for a reversal; that whatever negligence was proved was on the part of Feary, who was a fellow-servant of plaintiff, and that plaintiff was guilty-of contributory negligence. .We think neither of these points will hold good and justify a reversal of the judgment. Whether in truth Feary was a fellow-servant of plaintiff, or a vice-principal in. the particular work, need not be determined. He was in charge of the operation; and as an expert mill-wright presumably was familiar with how it ought to be done. At any raté, he was in authority and plaintiff was obeying his orders and expected to obey them. But as the court below treated him as a fellow-servant of plaintiff in instructing the jury, we will accept this view of their relationship, in examining the points raised. The chief proposition of defendant’s counsel is that the proximate cause of the accident, if due to anyone’s negligence, was the fault of Feary in selecting a weak rope from the supply on hand when he might have selected a strong one. It is further said the duty of a master to furnish his servants with reasonably safe appliances, has been sufficiently discharged to exonerate the master from liability, when plenty of suitable appliances are furnished, even though some fellow-servant of the injured party may select for use from among the lot of appliances furnished, one which is unsafe and thereby lead to an accident. We are pointed to the decisions in Herbert v. Ferry Co., 107 Mo. App. 207, 80 S. W. 978, and Forbes v. Dunnevant, 198 Mo. 193, 95 S. W. 934, as authorities supporting this proposition and precedents for the decision of the present case. The general doctrine of law is declared in those cases as contended for by plaintiff. But the Forbes case bears no resemblance to this one and the Herbert case no resemblance except that the plaintiff therein was
But it is insisted plaintiff was conclusively shown to have been guilty of negligence contributing to his injury. This proposition is based on the fact that the rope broke twice; once before the casualty happened as well as' when it occurred. When it first broke plaintiff was ordered by Pratt to tie it and did so, and in continuing to work with it thereafter, it is argued he was negligent. This issue was fairly put to the jury in several instructions, of which defendant’s counsel disclaim criticism, as they 'do of all the instructions. Hence, unless we can say the only inference from the facts in proof is that the hazard of again using the rope after it had once broken was so great and ap
We have carefully studied the evidence in this case and the instructions to the jury, which were noticeably perspicuous and accurate and presented all phases of the case in a clear light. No complaint is made of the amount of the verdict, and as the finding of the jury was well supported by the testimony and no reversible error occurred in the court’s rulings, the judgment will be affirmed.