Stephens v. Deatherage Lumber Co.

98 Mo. App. 365 | Mo. Ct. App. | 1903

BROADDUS, J.

This is a suit by plaintiff for damages for an injury to his person alleged to have been, received in April, 1901, while in the employ of defendant, through the negligence of Charles Y. Floyd, defendant’s agent. It appears that plaintiff was assisting in unloading heavy lumber from a freight car onto a wagon; that the manner of doing the work was to place two-skids with the end of each resting on the wagon and the other ends on the freight car; and that said Floyd, and one other workman got upon the car and rolled down the lumber over the skids onto the wagon, when plaintiff and the driver of the wagon would place them in proper position and then get out of the way of the next piece of lumber which would be sent down in the-same manner. There was evidence that after the work, had progressed for a while it became necessary to remove the skids from their position, after which Floyd, ordered plaintiff to replace one of them, which he did; but that before he had time to get out of the way of danger, said Floyd and his assistant rolled down a piece of lumber which struck and injured plaintiff. There was also evidence- that Floyd that day hired plaintiff and another to assist in the work and agreed with them as to the wages they should receive for their labor, and that he directed the unloading of the lumber from the-car onto the wagon.

It was shown by defendant that Floyd, who was-the traveling salesman of defendant but not then so engaged, was asked by Mr. Funk, the secretary and general manager of defendant, to assist in the work of unloading said cars; that for two days previous to the date-of plaintiff’s injury lie had assisted in the work, hut that on the morning of the last day it was found that there was not enough men on hand for the purpose, which fact Ployd communicated to Punk who directed him to hire two others; that in pursuance of this direction he hired plaintiff and one Mahoney and put them to work and that Ployd acted only as an assistant in unloading the lumber and gave no directions but only made suggestions as to the best manner of doing the work. It was shown that previous to the time in question Ployd had not acted in the capacity of foreman in the business of unloading lumber from the cars.

There was much evidence as to the manner in which plaintiff was injured and the extent of his injuries, but for present purposes it will not be necessary to state it.

The defendant’s answer was a general denial and the further defenses that the plaintiff’s injury was the result of his own negligence; and that he assumed the risk. The finding was for the plaintiff which the court set aside on the ground that error was committed in its refusing to 'peremptorily instruct the jury to find for defendant. Prom the action of the court in granting defendant a new trial plaintiff appealed.

It is- presumed from the argument of counsel and a review of all the evidence, although the whole case is gone over by both sides, that the court based its action upon the failure of plaintiff to show that said Ployd was at the time mentioned acting as defendant’s foreman, with authority to direct the work. There is no positive evidence that Ployd was clothed with any authority to act as foreman and if such authority existed it must be inferred from the circumstances that the superintendent directed him to hire plaintiff and Ma-honey, and that Ployd supervised the unloading of the lumber onto the wagon. In Glover v. Nut Co., 153 Mo. 327, it was held: “The power to employ and discharge is not always a conclusive test of the relation of master and servant” and that, “the opportunity to observe and influence, and report delinquencies is one of the tests employed.” Applying these rules to the facts of this case it would hardly do to infer that it was the intention of the superintendent, Funk, when he telephoned Floyd to hire two laborers to assist him in the work, that Floyd should -also direct it; but taken in connection with the other evidence that he in fact supervised the other workmen, we are not prepared to say that there was no testimony from which it might not have been reasonably inferred that he was acting as foreman by authority of said superintendent. Nor do we understand that the court, in granting a new trial because of the error supposed to have been committed by reason of failure to instruct for the defendant, meant to hold that there was no such testimony; but only to hold that the great preponderance of the evidence was against the plaintiff. In Powell v. Railway, 76 Mo. 80, the question of the power of trial courts to set aside verdicts of juries was considered; and it was there held that notwithstanding there may be some evidence to support a plaintiff’s case, yet unless it be of such a character as would warrant the jury in finding a verdict in his favor, the court may set it aside. See also Commissioners v. Clark, 94 U. S. 284; Merchant’s Bank v. State Bank, 10 Wall. 639.

It must be admitted that the testimony in this case' as to the agency of Floyd to superintend the workmen was not very conclusive, and as the trial court saw the witnesses and heard them testify it was best qualified to judge of their credibility and to weigh the force of the evidence. The granting of new trials is largely a matter of discretion wisely lodged in the trial courts, and with which appellate courts never interfere unless such discretion has been abused. Baker v. Independence, 85 Mo. App. 180; Haven v. Railway, 155 Mo. 216.

For the reason given the cause is affirmed.

All concur.