Schneider v. Missouri Pacific Railway Co., 117 Mo. App. 129

Schneider v. Missouri Pacific Railway Co.

117 Mo. App. 129 | Mo. Ct. App. | 1906

GOODE, J.

(after stating the facts). — The first error assigned is striking out the third paragraph of the petition, which charged defendants with negligence in that their foreman ordered plaintiff to assist one of the mechanics employed to construct and repair engines. *135The allegation is that the work plaintiff was ordered to do required a skilled mechanic and plaintiff did not understand such work, as the foreman knew; wherefore the latter was negligent in ordering plaintiff to assist in it and this negligence directly contributed to and caused the injury received. The next paragraph stated how the accident happened and showed plaintiff was holding a piece of machinery known as an engine strap, while the man h'e was helping knocked out the pins and bolts which ran through the strap. The engine strap was exhibited by the parties at the argument. Properly speaking it was not a strap, but a contrivance made of iron with parallel bars on either side and between them a brass crosspiece which could be pulled out. The petition stated, in effect, that plaintiff stuck his fingers through some holes in the bars out of which bolts had been knocked, and the mechanic suddenly and negligently jerked up the crosspiece from between the bars, thereby crushing and lacerating plaintiff’s fingers. It was further averred that neither the foreman nor the mechanic instructed plaintiff how to handle the strap and that he was ignorant of the dangers incident to handling it; that the mechanic plaintiff was assisting knew, or by ordinary care could have known, plaintiff’s fingers were through the holes and that to jerk the crosspiece upwards without warning would injure his hand. The petition charged that'the hurt plaintiff received was due to the combined negligence of the workman he was assisting and the foreman who ordered him to assist. But it is apparent that the proximate cause of the injury was the negligent act of the mechanic in jerking the crosspiece against the ends of plaintiff’s fingers, and not the order of the foreman... The work plaintiff was ordered to assist in was not accompanied by any latent or concealed risk. It was plain to be seen that while plaintiff’s fingers were protruded through the bolt-holes, a jerk upwards of the cross-piece which fitted between the sides of the engine strap, would crush them. Therefore *136it is obvious that nothing but the mechanic’s carelessness was the proximate cause of the accident. Plaintiff was not hurt in consequence of any risk incident to what he was doing, but by the fault of the man he was helping; which fault must be regarded as, in law, the cause of the injury. Many cases might be cited in support of this ruling, but the following are apposite and will suffice: Haley v. Transit Co., 179 Mo. 31, 77 S. W. 731; Henry v. Railroad, 76 Mo. 294; Logan v. Railroad, 96 Mo. App. 465, 70 S. W. 734. Therefore we hold there was no error in striking out that portion of the third paragraph of the petition which charged that the foreman’s order to plaintiff to assist one of defendants’ mechanics, was the cause of the accident.

But the first sentence of the eliminated paragraph stated that the mechanic plaintiff was ordered to assist, was in the employ of the defendants, which allegation Avas materially connected with the breach of duty charged against defendants in the remainder of the petition. This breach was that said mechanic hurt plaintiff’s hand by negligently jerking the crosspiece out of the engine strap while plaintiff’s fingers were stuck through the bolt-holes so they would be caught. The first sentence of the third paragraph was not interwoven with the allegation of negligence in ordering plaintiff to assist in doing work of which he was ignorant and which required a trained and skilled workman. It averred a fact essential, not only to that allegation, but to the part of the petition which stated the proximate cause of the accident, and was improperly struck out. [Crocker v. Mann, 3 Mo. 472; Backman v. Everding, 2 Fed. Cas. No. 708.]

After the motion to strike out had been sustained and the third paragraph had ceased to be a part of the petition, plaintiff did not amend, but left his pleading as it then was. A demurrer asserting that the petition in fhat form did not state facts sufficient to constitute a cause of action was filed and sustained. This ruling is assign*137ed for error; it being contended that tbe petition showed the mechanic’s negligence was the cause of the injury and that defendants were responsible as the mechanic was in their employ. With the third paragraph gone, the petition contained no allegation that the workman who hurt plaintiff was an employee of defendants, and hence nothing to show defendants were responsible for his act. Prom the briefs of counsel we judge that the demurrer was not sustained on this technical ground, but on a proposition going to the merits of the case, namely; that the facts alleged show plaintiff and the negligent mechanic were fellow-servants. In our opinion they were fellow-servants according to any of the several tests of that relationship which have been proposed by the courts. When the accident happened they were engaged in a common service, for the same employer, on the same task, and, by the natural inference from the facts alleged, under the same foreman.

It is certain that the workman plaintiff was helping was no vice-principal of the defendants with authority over plaintiff, nor was the latter injured in consequence of a breach of some duty to provide for his safety which the law will hold defendants answerable for, no matter what employee actually committed the breach. In other words, plaintiff’s injury was not due to a violation of a non-delegable duty; such as using care to provide him with reasonably safe tools and a safe place to Avork. It is unnecessary to reason about this point, because the facts stated shoAv a case in every material aspect like that of Richardson, Curator, v. Mesker, 171 Mo. 666, 72 S. W. 506, in which the fellow-servant relation Avas held to have existed between the injured minor and the workman whose carelessness caused the injury.

The judgment is affirmed.

All concur.