| Mo. | Oct 15, 1888
The plaintiff was a laborer at the defendants’ foundry, and in general worked at the kiln, burning bone black. During a period of five years, he had often assisted in loading and unloading mills, when taken out for repair. On the present occasion a new mill, consisting of three pieces, came to the factory on defendants’ wagon, drawn by a three-horse team. The road was muddy, so that the team had to stop one hundred and fifty yards from the mill and within fifteen or twenty feet of a railroad track. Whilst the plaintiff and others were unloading the mill, the horses became frighten'ed at an approaching train and a part of the mill fell on plaintiff’s foot, inflicting the injuries of which he complains.
The instructions given permitted a recovery by the plaintiff, if the defendants or their superintendent negligently failed to block the wheels of the wagon, or to have some one in charge of the team, or to detach the team from the wagon. The appellants insist that on the plaintiff’s own showing he Avas injured by his own negligence and that of his fellow-servants ; and for this
Other evidence tends to show that Mayer was present at first and told the driver to unhitch his horses. He was not present when the accident occurred. One piece of the mill had been taken off, and it was the second piece which fell; the other one was unloaded at the factory. There is no evidence showing or tending to show negligence in employing the laborers, who were at work with plaintiff; nor can any fault be attached to defendants on account of what Mr. Mayer or Hardesty did do or say, and the fault on their part, if any, was one of omission.
The question is whether it became the duty of Hardesty to personally see to it that the wheels of the wagon were blocked, or the team unhitched, or that the driver remained with the horses. A person entering the employment of another takes upon himself the ordinary risks and perils incident to the business in which he engages; and this includes the negligent acts of a fellow-servant, unless the master has been negligent in employing or retaining in his services the servant in fault. On the
Conceding that Hardesty represented the defendants as their agent, and that his negligence was their negligence, still it seems to us that it would be pushing the doctrine just stated too far to apply it to a case like the present one. The plaintiff and his co-laborers, including the teamster, knew of the existence of the railroad and that trains were constantly passing back and forth. The teamster, in the absence of any proof to the contrary, must be presumed to have known the disposition of his horses, whether they would become frightened from passing trains, and how to secure them against accident. In the absence of any contrary proof, it must be assumed it was his duty to look after his team. The plaintiff and those engaged in unloading the mill, were in no way restrained from taking any precautionary measure they saw fit. The necessity of taking some precautionary measure to avoid accident was just as obvious to them as to the superintendent. The danger was not an extraordinary one, but one incident to the business, and which they could easily have anticipated. The superintendent had a right to presume that they would take some measure for their own protection, the necessity of which was as obvious to them as to him. Where a suitable machine is put in the hands of a competent servant, he must exercise his judgment in the use of it;
Where a servant is injured by the commingling negligence of a fellow-servant and of the master, different considerations arise. We do not conceive that the evidence here tends to present such a case.
Judgment reversed.