273 Mo. 596 | Mo. | 1918
This is an appeal from an order granting a new trial after a directed verdict in an action respondent brought for damages for injuries received while aiding in banding an armature owned by appellants. Respondent was experienced in work of this kind. His employer, the R. W. Hodge Electrical Company, was repairing machinery used to generate electrical current for appellants’ building. /The armature was fixed upon an extension of the drive-wheel shaft of an engine in the same room. Appellants’ regular engineers operated the engine when necessary to operate it in the progress of the repairs.
It is contended (1) there'is no evidence of negligence; (2) respondent was guilty of contributory negligence; and (3) appellants are not liable for the negligence, if any, of the engineers.
' It is true, except in cases of wanton wrong, there is no negligence if no reasonable man could have foreseen any injury from the act done. But it is not true .that the particular injury must have been such it could have been foreseen. An act is negligent when an the circumstances some injury to some one reasonably may be foreseen as a reasonable consequence. This being shown, liability attaches “for anything which, after the injury is complete, appears to have been a natural and probable consequence.” [Benton v. St. Louis, 248 Mo. l. c. 110, and cases cited.]
Whether a reasonable man ought to have foreseen injury to respondent upon a sudden starting of the engine and a failure to stop on signal, as promised, was a question for the jury in this case. That respondent would be drawn into the clamp unless he rid himself of the heavy coil of wire in time was a certainty. Whether, in view of the promise to stop, he would rely upon that promise too long, as he did, or would see his danger in time, as he did not, and, being rapidly drawn toward the clamp, would be injured by it is, in our opinion, not to be settled as a matter of law on this record. It is clear the fact the engine happened to be on “center” when the start was made does not excuse a start more sudden, a speed more swift and a stop less prompt than was promised. If a particular condition made necessary a variation from the directions given and agreed to be followed, respondent or his foreman should have been advised of it otherwise than by suddenly starting the engine at rapid speed.
The evidence cannot be said to be such that all reasonable minds would agree no negligence is shown.
III. The final contention is that though the engineers were in the general employ of appellants, yet at the time of the injury and in respect of the act causing it they were the servants of the R. W. Hodge Company. If it be true that in doing the act complained tof the engineers were not acting as appellants’ servants, respondent has no- cause of action. This contention presents the question whether there was any substantial evidence tending to show that in starting the engine the engineers acted as appellants’ servants. In a much cited case (Rourke v. Moss Colliery Co., 2 C. P. Div. (L. R.) l. c. 209) .it was said: “But when one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.” It is this principle appellants invoke.
The evidence tends to show that the Hodge Company, acting upon an order to repair the generator, sent respondent and Krebs, his foreman, to do the electrical work; that company furnished its employees to do the electrical work, but furnished no one to run the steam engines and “had nothing to do with that;”
It is undisputed the engineers were in the general service of appellants; that they hired them, paid them and could discharge them. It is apparent the evidence would support a finding that the Hodge Company had no power to discharge the engineers from appellants’ general employment, nor yet to substitute for them other persons to run the engine in banding the armature; that the details of the operation of the engine were to be left to the engineers, and that the directions the employees of the Hodge Company were authorized to give were only as to the time when the engines were to be run and not as to the manner or method of running them; that the Hodge Company was employed merely to do the electrical work and that in directing the use of its engines to revolve the armature, if appropriate to the work of banding it, appellants were furnishing needed power which might have been otherwise furnished at greater expense; that the operation of the engines was as much in the interest of appellants as of the Hodge Company.
It is said the principal test of the relationship of master and servant is control. In a case like this it is necessary carefully to “distinguish between authoritative direction and control and mere suggestion as to details or the necessary co-operation, where the work furnished is part of a larger undertaking.” [Standard Oil Co. v. Anderson, 212 U. S. l. c. 222.] In the same case it is pointed 'out that one is not lifted out of his
The .evidence fails to establish conclusively that the engineers had changed masters. The question is usually one for the jury and is so in this case. The eases cited announce no rule which would warrant the taking of this question away from the jury.
The order is affirmed and the cause remanded.