Tucker v. Missouri & Kansas Telephone Company
| Decision Date | 29 June 1908 |
| Parties | GEORGE W. TUCKER, Respondent, v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.
Judgment affirmed.
Battle McCardle and Gleed, Hunt, Palmer & Gleed for appellant.
(1) The court erred in admitting evidence that Tyner, the employee who was alleged to have been incompetent, had had "fits" or was subject to "fits." There was no evidence that Tyner had a "fit" when the accident occurred, or that the alleged fact that he was subject to "fits" had anything whatever to do with his alleged negligence. And with the first offer of evidence of this kind counsel for respondent disclaimed any intention of proving that the alleged "fits" had anything to do with the accident. (2) Even if the allegation of incompetency permitted the proof of fits, it was immaterial here because the specific act complained of was alleged to have been carelessly, negligently and recklessly done, and therefore incompetency in any other respect would be immaterial for the reason that it would not contribute to the injury. Kliefoth v. Iron Co., 98 Wis. 495; Olson v. Lumber Co., 100 F. 384; Barney v. Pinkham (Neb.), 45 N.W. 694; Railroad v. Rowland (Tex.), 22 S.W. 134. (3) Regardless of the pleadings proof of fits was inadmissible because it was not shown that the alleged fits had anything to do with the injury complained of. 12 Am. and Eng. Ency. Law, 918; Zumalt v. Railroad, 35 Mo.App. 661; McDermot v. Railroad, 73 Mo. 523; Kersey v. Railroad, 79 Mo. 362; Johnson v. Railroad, 114 Pa. St. 443; Herrington v. Railroad, 4 N.Y.S. 140; Railroad v. Davis (Tex.), 48 S.W. 570; Cosgrove v. Pittman, 103 Cal. 268; Inglehart v. Railroad, 29 N.Y.S. 425; Wright v. Railroad, 35 N.Y. 562; Campbell v. Wing, 5 Tex. Civ. App. 431; Kliefoth v. Iron Co., 98 Wis. 498. (4) The motion in arrest of judgment and the objection to the introduction of evidence under the petition for the reason that it did not state facts sufficient to constitute a cause of action should have been allowed and sustained, because there was no allegation in the petition to show directly or by inference that the alleged negligence of appellant in employing an incompetent servant or the alleged negligent act of that servant caused the injury complained of. Such an allegation was necessary. 14 Enc. of Pl. and Pr., 336. And the failure to make it was fatal. Kliefoth v. Iron Co., 98 Wis. 498; Haeussler v. Box Co., 49 Mo.App. 636, 13 Cyc. 173.
Kelly, Brewster & Buchholz, C. E. Burnham and W. E. Burnham for respondent.
(1) There is no dispute as to this proposition of law, namely, that the master must use ordinary care in employing and retaining competent and suitable servants. This is a personal duty devolved upon the master, and he is liable for a failure to perform this duty resulting in injury to a fellow-servant. Williams v. Railroad, 109 Mo. 482; Dysert v. Railroad, 145 Mo. 83; Grube v. Railroad, 98 Mo. 339; Maxwell v. Railroad, 85 Mo. 95; Wood on Master and Servant, sec. 432; 12 Am. and Eng. Ency. Law (2 Ed.), 1024; Railroad v. Brow, 65 F. 941; Baulec v. Railroad, 59 N.Y. 356, 17 Am. Rep. 325; Davis v. Railroad, 20 Mich. 124; O'Hare v. Railroad, 95 Mo. 662. (2) Where a petition was bottomed upon the negligent act of the master in employing and keeping in its employ an incompetent servant, and the testimony in the case showed that this servant was a brakeman; that he was sent back to flag an approaching train to keep it from running into his own train which was standing still upon the track, and that he failed to take his signal back a sufficient distance to afford any protection to his train; and where the evidence further showed that prior to this negligent act of said servant, he had not been guilty of any other specific act of negligence, it was held that the allegations of the petition were supported and plaintiff was entitled to recover upon the proof that said servant had been subject to epileptic fits long prior to the accident and that this fact was known to the defendant although no proof was made that he was suffering from an epileptic fit at the time of the negligent act complained of. Baird v. Railroad, 64 Hun (N. Y) 14; 4 Thompson, Commentaries on the Law of Negligence, sec. 4898.
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant in the employment and retention in service of an incompetent servant whose negligence was the immediate cause of the injury. Verdict and judgment were for plaintiff in the sum of three thousand dollars and defendant appealed.
Defendant is engaged in the telephone business in Kansas City and at the time of the injury, June 1, 1905, maintained a "pole yard" where it prepared poles for installation in its telephone lines. A gang of laborers, among them plaintiff, was employed in this work. Poles received in the yard were piled horizontally and after wards were dressed near the pile in which they had been placed. First, a workman called a "knotter" would roll one from the pile, using a canthook for that purpose and would chop off the knots with an axe. Then the pole would be laid on trestles where other workmen, called "shavers" would strip off the bark and make the pole smooth. Plaintiff was employed in the latter capacity and was at work near a lot of long, heavy poles which had been laid against a fence in a pile ten or twelve feet high and fifteen or sixteen feet deep at its base line. His position (directed by the foreman) placed him with his back towards the pile and where he might be struck by the rolling of a pole pulled down therefrom. To guard against injury from such cause to the men shaving the poles, it was made the duty of the "knotter" to call out a warning before he started to bring down a pole in order that they might leave their positions for places of safety. The evidence of plaintiff tends to show that he was injured by being struck on the leg by a rolling pole which the "knotter" negligently started without giving any warning. It is alleged in the petition that the "knotter" was a "careless, negligent, reckless and grossly incompetent man," that his habitual carelessness and incompetency had been known to defendant; that on a number of prior occasions, he had rolled down poles without warning the men and thereby had threatened them with great injury; that the men had complained repeatedly to defendant of his carelessness, but that "defendant negligently kept the said Charles Tyner in its employ and engaged in the above-described work after it knew, or by the exercise of ordinary care should have known, that he was careless, negligent, reckless and grossly incompetent, and of the careless and negligent manner in which he performed his duties in and about said work; and that he was not a safe and suitable person to work in said position, and that he was liable to injure some of his fellow-workmen by the careless and negligent manner in which he handled said poles." Further, it is alleged "that while plaintiff and his companions were engaged in said work at said place at the foot of said pile of poles, said Charles Tyner carelessly, negligently and recklessly rolled a pole from the top of said pile without first giving any warning to the men below, including the plaintiff; that said pole struck plaintiff, and plaintiff's right leg was thereby broken and dislocated, . . . that the defendant carelessly and negligently failed to furnish plaintiff and his companions a reasonably safe place in which to work; that the place furnished plaintiff and his companions in which to work was dangerous and unsafe in this, to-wit: It was so close to said pile of poles that persons working at said place were in constant danger of being struck by said poles rolling from the top of said pile, . . . that he has been damaged by the wrongful acts of the defendant aforesaid in the sum of ten thousand dollars," etc.
Several members of the gang of workmen who were introduced as witnesses by plaintiff testified to prior negligent acts of a similar nature committed by the "knotter," and further testified that complaints of his carelessness were made at different times by the men to the foreman who reproved the delinquent and threatened to discharge him. But the greatest effort of plaintiff was directed to showing (over the objections of defendant) that the "knotter" was incompetent because he was subject to fits. The principal grounds of the objections were that no such issue was represented by the pleadings and that as the injurious act was not committed while the "knotter" was in the throes of an attack, the disease could bear no causal relation to the injury. At the threshold of the investigation of the subject, counsel for plaintiff was asked, "Do you expect to show that Tyner had a fit at the time of this alleged injury to the plaintiff?" To which he replied, "No, sir, we expect to show that on a great many occasions he had fits there in the yards; that he would be engaged in one kind of work and would suddenly go to some other work, that the foreman would go after him and bring him back and talk to him and see that he started to work again; that he would be digging holes, and he would see a pole gang, a gang of street people shoveling out in the road, that he had no connection with, and he would break away and go down there and join them; that the foreman would go and get him and bring him back with his eyes rolling; we expect to show that in order to show that he was a man who should not have been put in this position." The objections were overruled and the evidence admitted. It is to the effect that Tyner, the knotter, was an epileptic and at...
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