261 Mo. 1 | Mo. | 1914
In a case sounding in tort in the Jackson Circuit Court, wherein the damages were laid at $15,000, the jury found for defendant. Thereat, on motion, the court ordered the verdict set aside, granting a new trial on the ground of error in defendant’s given instructions. Thereat defendant, a corporation, appealed from such order. Plaintiff dying pending-appeal, Strother, administrator, is substituted. For convenience we continue to use “plaintiff.”
Defendant owned a flouring mill in Kansas City of a capacity of six hundred barrels daily. In this mill were devices known as bleachers, agitators, and conveyors. operated by belts, pulleys, and shafting and run by steam power. These bleachers, etc., were devices to whiten the flour by the use of a current of air and electricity. One Brown was defendant’s superintendent and in full control and management of the mill and all the men employed therein. About four weeks before the accident, plaintiff, a millwright, was employed by superintendent Brown to make some alterations in or put in some new bleachers. The bleachers or alterations were completed ready for testing, and while to that end plaintiff was assisting Brown in putting on a belt connecting the bleachers with the power he was thrown off a ladder and severely injured by the sudden and unexpected starting of the machinery. His suit for damages is bottomed on those injuries, and there is no question here as to their gravity.
It will not be necessary to set forth even a summary of the petition; for plaintiff’s principal instruction was within its allegations and we reproduce that to show the pleaded grounds of negligence and the theory on which recovery was sought, viz.:
Plaintiff introduced evidence tending to prove the facts hypothesized and outlined in that instruction and the averments of his petition. The case will proceed on appeal more understandingly by summarizing the tendency of plaintiff’s proof, viz.: The bleachers, agitators, etc., were in an upper story of the mill. The shaft operating them was close to the ceiling of the story below. This shaft may be called the “upper shaft. ’ ’ On this tipper shaft was a pulley forty inches in diameter and ten inches wide, which, for the purposes of this case, we will call the ‘ ‘ dead pulley. ’ ’ The edges of this pulley were arranged so that the pulley had a rise towards the center, called a crown. In the room below this upper shaft close to the ceiling was another shaft directly connected by gearing and belts to the power. This shaft may be called the “lower shaft. ’ ’ On this lower shaft was a pulley thirty inches in diameter and ten inches wide, which, for the purpose of this case, will be called the “live” or “driving pulley. ’ ’ It revolved at the rate of 280 revolutions per minute. The live pulley was' not directly under the dead one, but to one side so that when the belt connecting the two was on it stood at an angle of, say, forty-five degrees. Holes were made in the floor at the right places above the live pulley through which the endless belt passed. The alterations had been made in the bleaching devices or new ones installed by plaintiff and another millwright, Bennett, and the two had tested the machinery by an old light six-inch belt which was found insufficient. Thereupon, by direction of Brown, the two made a new heavy stiff eight-inch belt of two-ply leather, about seventy-five pounds in weight, and sixty-four feet long. They put it over the upper and lower shafts and made an endless belt of it by bevelling the ends (making tongue laps) and fastening them together with “cement” and by hammering
Brown, testifying for defendant, says he gave warning to plaintiff at the crucial instant, but at the same time says he did not know plaintiff had hold of the belt at that time or at any other time. As we gather it, his idea was that plaintiff was to use his hands in turning the dead pulley, not to hand up the slack. In other words, he, Brown, with his one hand was to lift the seventy-five pound stiff belt and put it on the pulley without plaintiff’s touching it. To contradict the theory that he was expected to' manipulate the pulley itself, plaintiff testified (and he had other testimony to the effect) that it would take five- or six-horse power to turn the dead pulley.
With the proof as outlined, defendant offered a demurrer at the close of plaintiff’s evidence in chief and again asked a mandatory instruction at the close of the whole case, both of which were refused, and now on appeal its counsel argue not only that the questioned instructions were good, but that plaintiff and Brown were fellow-servants in and about the matter of put
Plaintiff in turn complains of the giving of four instructions (two, four, five and seven) on behalf of defendant, all of which will appear in due course. His counsel argue that the motion for a new trial was well ruled because of error in those instructions; further that though the court did not specify other grounds in its order sustaining the motion, yet if there be other grounds for a new trial present then such other grounds sustain the order granting a new trial, and, on this head, his counsel invoice the doctrine that in granting a new trial there is a discretion in the trial court where the verdict is against the weight of the evidence. From that angle also they contend (that element being present and noticed in the motion for a new trial) the order granting a new trial was well enough. Such substantially is the case. Any other facts germane to a disposition of points ruled will appear further on in due order.
I. Of defendant’s demurrer (and herein of the mandatory instruction).
In their original brief counsel did not make the point that Brown and.Barker were fellow-servants and hence the demurrer lay. It is made in their reply brief for the first time, and is there justified because plaintiff insists on sustaining the order granting a new trial, not only on the specifications made by the trial judge, but on other grounds as well. The appearance of the point is, therefore^ late and somewhat by way of afterthought or counter thrust. Assuming, without deciding, that a defendant may appeal from an order granting a new trial and have the order reversed because plaintiff at the -first trial did not make out a case (thereby taking away his chance of making one at the second trial) we proceed to dispose of the demurrer
In our opinion the doctrine of fellow-servant does not bar recovery in this case as a matter of law. This because: There is no dispute on this record but that Brown was the superintendent of the mill and as such had exclusive supervision of its operations and of the men employed therein, including the two millwrights, Bennett and Barker. The whole case runs on the theory that Brown both in rank, capacity and act represented the master. To say that Brown and Barker were in a common employment is to say that the captain of a ship and a sailor are in common employment, because they are both, in a general sense, engaged in sailing the ship. The facts, then, make it a typical case of Superintendent Brown being the vice-principal of the corporate master. Unless his eye, voice, hand and acts were the master’s then the master on this record was absent from that mill and neither acted per se or per alium there at any time. This general relation obtained, too, in the very act of putting on the belt. Brown, for the master, appointed the time, directed the method and assumed an attitude of a superior to a subordinate in the performance of that service. Let us copy a bit of the record on the point and from that discern the trend of the whole of it (Brown being on the stand):
‘ ‘ Q. Tell us what you said to him. A. Well, sometime before we put the belt on I was up on the floor he was working on, and I told him, I says, ‘We will put the belt on, Mr. Barker.’ Q. Speak up so that I can understand. A. I says, ‘We will put the belt on when you get your work finished up, when you get that job completed.’ He was connecting the power of the lower part of the agitator. Q. Didn’t you mean by that a direction to come and assist you? A. I told him we
It would be unprofitable to reagitate the vexed question: Who is a fellow-servant ? Or to reformulate or reannounce the doctrine of this' court in that behalf. Error often lurks in generalities and no rule can be laid down that would fit all cases. It would be a bold judge who said that appellant courts had always been able to hold a steady and even voice in promulgating or applying general principles on this head. Cases may be found that approach the matter from this, that or the other angle (including that of “dual capacity”) ; but no soundly reasoned case can be found, I think, where the master had a conceded vice-principal present, as here, and where such vice-principal personally by virtue of being master and in the line of his rank and duty took charge of a transaction and injured an employee negligently by exposing him to extra hazard, or by making his field of operations unreasonably unsafe, where the doctrine of fellow-servant was allowed to bar recovery. The reasoning and facts of many cases sustain that view of it. For example: Hollweg v. Telephone Co., 195 Mo. l. c. 156 et seq., and cases cited: Russ v. Railroad, 112 Mo. 45; Burkard v. Rope Co., 217 Mo. l. c. 480 et seq.; Bien v. Transit Co., 108 Mo. App. 399; Dayharsh v. Railroad, 103 Mo. l. c. 576 et seq.; Miller v. Railroad, 109 Mo. l. c. 356 et seq.; • McIntyre v. Tebbetts, 257 Mo. 117. In the Miller case, supra, Black, J., summarizes the grounds of liability in this acceptable way:
The premises considered, defendant’s demurrer and mandatory instruction were well ruled below.
II. Of the given instructions for defendant alleged to be erroneous.
Of the series of instructions given for defendant, plaintiff complains now of the second, fourth, fifth and seventh, and his counsel argue that the order granting a new trial may stand on the theory one and all were erroneous.
“2. The jury are instructed that there is no evidence in this case that the condition of Mr. Brown’s left hand diréetly caused, or directly contributed to cause, the plaintiff’s injuries (if any), and your finding on that issue must be for the defendant.
“4. Even if the jury believe from the evidence that the witness Brown was plaintiff’s superior officer, and that said Brown was negligent in the performance of the work in which he and plaintiff were engaged at the time plaintiff claims to have been injured, and that such negligence was the direct cause of plaintiff’s injuries (if any), yet if you further believe from the evidence that such negligence consisted
“5. The jury are instructed that the plaintiff in entering the employ of defendant and continuing to work for it, assumed the risks (if any) there were growing out of any danger there may have been in doing the work at which he was engaged in the usual and ordinary way. If therefore it appears from the evidence that the plaintiff’s injuries (if any) were the result of such risk, then defendant is not in law at fault therefor, and it is your" duty, without regard to the other questions in the case, to return a verdict in its favor.
“7. Plaintiff was bound to use his senses and intelligence and experience in and about the doing of his work, and if he failed to use either to the extent to which a person of ordinary care of his age and experience would have used them under the circumstances as they existed at the time he was injured, and if such failure directly contributed to cause his injuries (if any), then he is not entitled to recover in this case, and you must find for the defendant, and this is so even though you should find that the defendant was also negligent or failed in some duty it owed to plaintiff.”
(a) To determine whether defendant’s instruction number two was correct, attend to more of the record. The petition describes superintendent Brown as a man “who was physically incapacitated to do such work,” meaning thereby the work of putting on such a belt in the way adopted. Evidently at least defendant’s counsel had made reference in his opening statement to a crippled hand of Mr. Brown, and had ad
“Q. Now, yon heard Mr. Boyle’s statement here about Mr. Brown having a crippled hand? Did yon know about that? State what the facts were in regard to that. A. That is a false statement; I didn’t know it. I never knew he had a crippled hand until after the thing happened, because we had never done any work with him or been intimately associated with him. Q. Which hand was it that was crippled? A. I think it is his left hand.”
Presently when one Bemley was on the stand for plaintiff the latter’s counsel sought to show that Brown had a crippled hand. Thereat defendant’s counsel objected to the testimony because it “had no part or cut no figure in this accident ... as shown by plaintiff’s own testimony.” On this objection plaintiff’s counsel withdrew the challenged question. With the record in this fix, defendant’s counsel, not content, later opened up the matter anew on their own hook. When Brown was on the stand one of them propounded questions and received answers as follows:
“Q. Is this hand impaired as to strength by reason of.the bent condition of these two fingers? A. No, sir, I have as much strength as I ever had in the right hand. Q. Did the condition of this hand in any way prevent you in doing the work of putting on that belt? ... Q. Well, just describe to the jury in what way you used or did use this hand, if at all, and what, if anything, the condition of the hand interfered with or affected it? A. Well, I didn’t use this hand at all. All I used this hand for was on the ladder to support myself on the ladder, hold the ladder. I put the belt on — raised the belt with my right hand.”
When plaintiff came to his instructions, he tendered no issue whatever on the condition of Brown’s
The real question, then, is: In the light of the whole record was it error to give instruction number two for defendant?
To support the instruction defendant’s counsel argue after this fashion: “It would appear from the record that the issue was not before the court, but evidence being admitted tending to show that the witness Brown had a crippled hand it was proper for the court to limit its effect by instruction.” But it will be observed that the instruction does not limit the effect of the evidence. Contra, it is so worded as to entirely destroy its effect. Presently we will set forth facts from which we can get at Brown’s theory of how the accident happened, but for present purposes it is sufficient to say that neither in his nor in plaintiff’s theory did the crippled left hand of the superintendent connect itself in a causal way with the accident. We conclude, then, that although defendant must stand sponsor equally with plaintiff for lugging Brown’s crippled hand into the case, and. though the court, without committing error, might have left the evidence stand as a circumstance for what it was worth in connection with all the other facts and circumstances, yet we cannot see that the merits of plaintiff’s case were materially affected by the instruction, even as broad as it is. Hence if there was no other error at the trial, the order granting a new one could not well stand on such a narrow and precarious point.
(b) In disposing of the fourth instruction, attend further to the record. Defendant’s principal witness, its only reliance, was Superintendent Brown. As already indicated, there is substantial agreement between him and plaintiff on the necessity of notice to the helper at the precise time the principal actor “feels” the belt beginning to crawl or bite on the dead pulley. Now, plaintiff says he received no such notice, though
(c) And this brings us to defendant’s instruction number five on assumption of risk. Assumption of risk has been defined by a discriminating writer as “a term or condition in a contract of employment, either express or implied from the circumstances of the employment, by which the employee agrees that dangers of injury ordinarily or obviously incident to the discharge of his duty in the particular employment shall be at his own risk.” [Bl. L. Diet.] The words “or obviously” connect themselves logically with the doctrine of volenti non fit injuria, and are broad enough to cover the idea (among others) of known dangers voluntarily encountered. In this jurisdiction it seems that to settle liability for encountering dangers arising from the master’s negligence that are so glaring and imminent an ordinary prudent person would not encounter them, reference is had to the doctrine of contributory negligence (sounding in tort) and not to the assumption of risk (sounding in contract); for in this jurisdiction it has become settled doctrine that the servant does not assume the risk of his master’s negligence. [George v. Railroad, 225 Mo. l. c. 408 et seq.] The Missouri doctrine is that there is another term
“The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified, duties and services, for compensation, takes upon himself the natural and ordinary' risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjudged accordingly. ’ ‘
But philosophizing about the matter at this day is unprofitable. This court has a doctrine, as said, to-wit, that the master cannot impliedly or expressly contract against his own negligence, hence the servant does not assume the risk of the master’s negligence;
In instruction number five the doctrine of assumption of risk is put to the jury as an abstraction of law. Broadly interpreted, it is likely its form would pass muster as an abstraction, although ci itically speaking it puts the cart before the horse, it makes the injuries result from the risk instead of from the danger ordinarily incident to the discharge of duty in the given employment. But that is by the by, for there is a deeper-going objection to it, to-wit, it had no place in thé case under- the facts of the record. The case hinging on the giving of timely notice by the master to the servant, what have the dangers, ordinarily incident to that form of employment or to the appliances they used, to do with the casé? Is a failure to give notice (the presiding fact in the case) an ordinary incident the risk of which the servant assumed? Would not the jury so interpret such rule falling from the lips of the judge and decisive of the whole case, as this one is ? If so, then the servant assumes the risk of the master’s negligence in a situation sprung suddenly and imperiously demanding the instant use of care and caution. - Much of what is said in considering instruction number four is applicable here. The natural result of that instruction was to confuse and mislead the jury, hence the order for a new trial may stand on the error of giving it.
(d) Speaking to defendant’s instruction .number seven, we say this: Plaintiff in his own quoted instruction put to the jury the issue of his due care. In that view of it, we need not seek for any real ground upon which to put the issue of contributory negligence to the jury as an affirmative defense, for by invoking the judgment of the jury on his due care he thereby invoked their judgment on his lack of it and that, in turn, spells
The conclusions reached make it unnecessary to consider the question sprung by plaintiff, to-wit, that the order granting a new trial was within the discretionary power of the court relating to granting one when the verdict is against the weight of the evidence. In the face of another trial we prefer not to comment on that feature.
It follows from what has been said that the judgment should be affirmed and the cause remanded for the new trial granted’ below. Let it be so ordered.