134 Mo. App. 460 | Mo. Ct. App. | 1908
Plaintiff’s right arm was broken in an accident which occurred December 26, 1906, near Flat Rock, a station oh defendant’s railway in the State of Illinois. Plaintiff was in the service of defendant, and, with some thirty laborers, was engaged on said date*in stacking ties on defendant’s right of way. Two tracks ran parallel at the point where the work was in progress — one the main line, which ran through a cut twelve feet deep, and the other a siding, or as the witnesses said, a new track, which was on the' top of the embankment. The ties were in the -ditch by the main track, and were carried by the men to the top of the bank and piled there. Water commonly stood in the
“Plaintiff further states that he and the other employees of defendant who were then and there engaged in the work of handling and piling said ties, were subject to and were required to and did obey the orders of defendant/s said foreman, and said foreman had authority from defendant to direct each and every one of said employees in and about the said work and at all said times did so direct them; that said foreman had authority to point out the place where said ties were to be piled and to determine how many ties should be placed in the pile and the width and height of the piles of ties, and that said foreman did direct plaintiff and the other employees in and about the said work and had so directed them as to the building of the pile where plaintiff was at work when he sustained injuries as hereinafter mentioned.
“Plaintiff further states that by reason of the great height and the sloping condition of the sides of the said pile of ties and the fact that they were covered with ice and sleet and were slick and slippery, and the position where plaintiff was required to be and continue at work by defendant’s said foreman, as aforesaid, and the further fact that said ties were by the direction of defendant’s said foreman, being thrown and tossed upon the top of said pile, plaintiff was, by direction of defendant’s said foreman, placed and required to be and*466 work in a situation that was not reasonably safe and where plaintiff was liable to be struck by said ties and injured, and that defendant and its said foreman, then and there knew that plaintiff was not in a reasonably safe place to work, or would haye known thereof by the exercise of reasonable care for the plaintiff’s safety.
“Plaintiff further ayers that while he was so employed- and at work as aforesaid, and in the exercise of reasonable care for his own safety, other employees of defendant who were then and there at work, by direction of defendant’s said foreman, carried one of said ties to and threw and tossed the same upon the top of the said pile or stack of ties where plaintiff was at work, and that said tie, by reason of the condition aforesaid, did not remain in place but slipped and thereby caused other ties in said pile to slip, and that several of the said ties were thereby caused to and did slide, roll and fall down to and upon plaintiff and upon plaintiff’s right arm with such force and violence as to break and crush the bones thereof.”
The defenses were, a general denial, a plea of contributory negligence and of assumption of the risk by plaintiff. The law of Illinois was pleaded in the answer for the purpose of showing to what extent the two latter defenses Avere available in the jurisdiction where' the accident occurred. When the testimony for plaintiff was in, the court directed a verdict for defendant, plaintiff took a nonsuit with leave to move to set the same aside, and his motion having been denied, he prosecuted this appeal.
1. In our opinion the facts in proof would support an inference of negligence on the part of defendant’s foreman and therefore presented a case for the jury, unless plaintiff was shown to have contributed to his injury by his own fault or to have assumed the risk of such an accident. For the foreman- to direct plaintiff to commence a new stack of ties in the immediate vicinity of a stack eight or nine feet high, two feet wide at
2. The argument for defendant is not so much that the evidence would not support a finding of negligence on the part of the foreman, as that the petition does not count on his negligence, and for this reason we have quoted part of "it. The petition does declare on the carelessness of the foreman as one act of negligence; for it avers that while plaintiff was at work, in a stooping posture, and in the exercise of reasonable care for his own safety, other employees of defendant who were there at Avork, by direction of said foreman, tossed one of the ties on the stack where plaintiff was at work, and said tie, by reason of the condition aforesaid (i. e. its icy condition) did not remain in place but slipped, and several of the ties were caused to slide and roll doAvn upon plaintiff. The other quoted portions of the petition enforce the notion’that, not only was the foreman careless in respect of ordering plaintiff to work in a place not reasonably secure, but was careless also in ordering the tie to be thrown on the tall stack while
3. We detect no want of care for his own safety in the way plaintiff acted, and are sure the conclusion is fair that he was not to blame, in any degree, for the accident. This defense has not been pressed and, at best, was for the jury. If the foreman was to blame and his d.uties and authority were such as to prevent him from being classed as a fellow-servant of plaintiff, the action cannot be defeated under the law of this State or of Illinois, on the ground of an assumption of the risk by plaintiff; for a servant does not take the risk of injury from the negligence of his master, or a vice-princfpal of the master. [Miller v. Railroad, 109 Mo. 350; Offcut v. Co. Ex. Co., 175 Ill. 472; Elgin, etc., Railroad v. Myers, 226 Ill. 258, 361.] Those two Illinois cases hold that “one of the limitations upon the doctrine of assumed risk is, where the servant, by the order of the master or one standing in that relation, is directed to encounter a danger and he obeyed the order, he does not assume the risk unless the danger is so great that an ordinarily prudent person would not have assumed it,” In Pullman Palace Car Co. v. Laack, 143 Ill. 242, 256, it was said:
“As a general rule, the servant assumes the natural and ordinary risks of the business in which he engages, and is held to impliedly contract that the master shall not be liable for injuries consequent upon the negligence of a fellow-servant, in the employment of whom the master has exercised proper care, but he does not assume or contract to waive liability of the master for his own negligence, whether committed in person, or by an agent authorized by the master to perform a duty resting upon him. In such case, the master being under contract duly to perform, the servant may, without sufficient appearing ^or being shown to put him upon notice to the contrary, rely upon the due and reasonable performance of the duty. The law*469 will not permit the master to evade the duty which it has cast upon him, by shifting it upon another.”
As to what circumstances make an employer a vice-principal of the master and what make him a fellow-servant of his co-employees, we think the law of Illinois does not differ materially from our own. In City of La Salle v. Kosta, 190 Ill. 130, 141, this was said on the subject:
“Where a master confers authority upon one of his employees to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employee, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not a mere fellow-servant; and all commands given by him within the scope of his authority are, in law, the commands of the master.” '
When regarded in the light most favorable to defendant, the facts of the present case would not justify a court in ruling that the foreman of the tie gang was plaintiff’s fellow-servant. We need decide no more than this to dispose of the point. If the facts regarding the foreman’s duties turn out to be undisputed, and such that reasonable minds cannot differ about the conclusion to be drawn from them, whether the fellow-servant relation existed will be a question of law; otherwise one of fact. [Ill. Steel Co. v. Coffey, 205 Ill. 206; Chicago Hair & Bristle Co. v. Mueller, 203 Ill. 558.] We have been cited to no Illinois decisions which hold contrary to what we have said, though the Supreme Court of said state enforces the defense of assumption of the risk more stringently than our Supreme Court does, against servants who work with defective appliances and tools, and continue in service knowing that they are exposed to dangers which the master has promised to obviate. [Elgin, etc., Railroad v. Meyers, 226 Ill. 359 et seq.] The idea of the defense of assumed risk as presented in
The judgment is reversed and the cause remanded.