Radtke v. St. Louis Basket & Box Company
| Decision Date | 14 June 1910 |
| Parties | EMIL RADTKE v. ST. LOUIS BASKET & BOX COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Geo. H. Shields Judge.
Reversed and remanded.
Seddon & Holland for appellant.
(1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of all the evidence. Grattis v. Railroad, 153 Mo. 380; Reichl v. Flynn, 196 Pa. St. 263; Dayharsh v. Railroad, 103 Mo. 570; Fogarty v Transit Co., 180 Mo. 490; Hawk v. Lumber Co., 166 Mo. 121; Garland v. Railroad, 85 Mo. 581; Gaul v. Beckstein, 173 Ill. 183; Reed v Stockmeyer, 74 F. 186; Hussey v. Coger, 112 N.Y. 614; Klochinsky v. Lumber Co., 93 Wis. 417; Gain v. Railroad, 101 Tenn. 380; Railroad v. Mauzy, 98 Va. 629; McElligott v. Randolph, 61 Conn. 157; Railroad v. Torry, 58 Ark. 277; Holtz v. Railroad, 69 Minn. 524; Lindvall v. Woods, 41 Minn. 217; Daves v. Railroad, 98 Cal. 19; Railroad v. Charless, 162 U.S. 360. (2) The court erred in giving instruction 1 at the instance of plaintiff. (a) Because it is too general in its scope. Mulderig v. Railroad, 116 Mo.App. 655; Allen v. Transit Co., 81 S.W. 1142. (b) The instruction is erroneous because it is not limited to the specifications of negligence contained in the petition. McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 514; Mueller v. Shoe Co., 109 Mo. 506; Adolph v. Pretzel Co., 100 Mo. 199; Evans v. Railroad, 222 Mo. 435; Beave v. Transit Co., 212 Mo. 331. (c) Because there was no testimony upon which to base said instruction. Stone v. Hunt, 114 Mo. 66; Evans v. Interstate Co., 106 Mo. 594; Yarnell v. Railroad, 113 Mo. 570. (3) The court erred in giving instruction 2 at the instance of plaintiff. (a) Because there was no evidence upon which to base said instruction. (b) Because it was error to leave to the jury the determination of whether or not the foreman at the time was acting as vice-principal. (4) The court erred in giving instruction 14 of its own motion. (a) Because it allows a recovery for medicine when there was no pleading or evidence that the plaintiff was put to any expense for medicine. Heidebrink v. Railroad, 113 S.W. 233. (b) Because it allows unlimited recovery for lost earnings when the petition only claimed lost earnings at the rate of $ 9 per week. Heinz v. Railroad, 122 S.W. 347. (c) Because it allows unlimited recovery for medical services when the petition claims loss of $ 21. (d) Because it allows recovery for any liability for medicines and medical services without limiting recovery to reasonable liability. (e) Because it assumes that plaintiff sustained pain and suffering.
Nagel & Kirby, Scullin & Chopin and Truman P. Young for respondent.
(1) It is the duty of the master to furnish the servant with a reasonably safe place in which to work. If he, whether acting by himself or through a vice-principal or foreman, sends a servant into a dangerous place, and the servant is injured while there, the master is liable. And this is especially true if the servant is sent out of the usual line of his employment into the dangerous place. Nash v. Brick Co., 109 Mo.App. 600; Zellars v. Water & Light Co., 92 Mo.App. 107; Herdler v. Stove Co., 136 Mo. 3; Doyle v. Trust Co., 140 Mo. 18; Mitchell v. Railroad, 108 Mo.App. 142; Van Esler v. Cigar Co., 108 Mo.App. 621; Thompson v. Railroad, 86 Mo.App. 141; Browning v. Kasten, 107 Mo.App. 59; Bradley v. Railroad, 138 Mo. 293; Stevens v. Railroad, 86 Mo. 221, 96 Mo. 207; Keegan v. Kavanaugh, 62 Mo. 230; Foster v. Railroad, 115 Mo. 177; Weston v. Mining Co., 105 Mo.App. 702; Haworth v. Telephone Co., 105 Mo.App. 161; Dane v. Irwin, 172 Mo. 306; Sullivan v. Railroad, 107 Mo. 66; Moore v. Railroad, 85 Mo. 588; Burkhard v. Rope Co., 217 Mo. 466; Meily v. Railroad, 215 Mo. 566; Garaci v. Construction Co., 124 Mo.App. 709; Combs v. Construction Co., 205 Mo. 367; Rigsby v. Supply Co., 115 Mo.App. 313; Bokamp v. Railroad, 123 Mo.App. 270. (2) The master is liable for an injury to the servant occasioned by the act of a foreman done in the exercise of his authority as foreman, whether the act be one of omission or commission, the failure to perform a duty which the law places upon a master, or an affirmative act done in his representative capacity and in the exercise of the authority derived from the master. Fogarty v. Railroad, 180 Mo. 490; Reed v. Railroad, 94 Mo.App. 380; Buckalew v. Railroad, 107 Mo.App. 575; Haworth v. Railroad, 94 Mo.App. 315; Hutson v. Railroad, 50 Mo.App. 300; Russ v. Railroad, 112 Mo. 45; Dayharsh v. Railroad, 103 Mo. 570; Strode v. Conkey, 105 Mo.App. 12; Bien v. Transit Co., 108 Mo.App. 399; Warren v. Railroad, 113 Mo.App. 498; Gormley v. Iron Works, 61 Mo. 492; Hollweg v. Bell Telephone Co., 195 Mo. 149; Donnelly v. Mining Co., 103 Mo.App. 349; Schroeder v. Railroad, 108 Mo. 327; Miller v. Railroad, 109 Mo. 356; Grattis v. Railroad, 153 Mo. 392; Railroad v. May, 108 Ill. 288; Fanter v. Clark, 15 Ill.App. 475; Brick Co. v. Savkowiak, 148 Ill. 580; Fraser v. Schroeder, 163 Ill. 464; Morton Bros. v. Nadabock, 190 Ill. 595; Steel Co. v. Schymanowski, 162 Ill. 447; Schaub v. Railroad, 106 Mo. 74; Mining Co. v. Doris, 90 Tenn. 711; 1 Shearman & Redfield on Negligence (5 Ed.), par. 226. (3) The master is liable for an injury to a servant resulting from his negligence, even though other causes, such as the negligence of a fellow-servant, concurred in bringing about the injury. Bluedorn v. Railroad, 108 Mo. 439; De Weese v. Mining Co., 54 Mo.App. 476; Craig v. Railroad, 54 Mo.App. 523; Ermer v. Brewing Co., 69 Mo.App. 17; Foster v. Railroad, 115 Mo. 165; Young v. Iron Co., 103 Mo. 324; Kennedy v. Gas Light Co., 215 Mo. 688; Buckner v. Horse & Mule Co., 120 S.W. 766. (4) The question whether plaintiff was injured by the foreman while acting as foreman, was properly submitted to the jury. Fogarty v. Transfer Co., 180 Mo. 490; Bennett v. Lime Co., 124 S.W. 608; Burkhard v. Rope Co., 217 Mo. 483. (5) The question of the cause of the injury was for the jury. Glasscock v. Dry Goods Co., 106 Mo.App. 656; Booth v. Air Line, 76 Mo.App. 522; Ruth v. Railroad, 70 Mo.App. 190; Reichla v. Gruensfelder, 52 Mo.App. 48; Blanton v. Dold, 109 Mo. 73; Rogers v. Printing Co., 103 Mo.App. 683. (6) The measure of damages was properly submitted by the court in a general instruction, the loss of earnings being for both the past and the future. Lindsay v. Kansas City, 195 Mo. 166; Kennedy v. Gas Light Co., 215 Mo. 701; Browning v. Railroad, 124 Mo. 55; Swearingen v. Mining Co., 212 Mo. 538; Abbit v. Transit Co., 104 Mo.App. 540; Tandy v. Transit Co., 178 Mo. 240; Waddell v. Railroad, 213 Mo. 18; Gerdes v. Foundry Co., 124 Mo. 347; Smiley v. Railroad, 160 Mo. 629. (7) The damages assessed by the jury were not excessive. Phippin v. Railroad, 196 Mo. 321; Latson v. Railroad, 192 Mo. 468; Chitty v. Railroad, 166 Mo. 435; Devoy v. Railroad, 192 Mo. 198; Dougherty v. Railroad, 97 Mo. 641; Griffith v. Railroad, 98 Mo. 168; Goldsmith v. Holland Building, 182 Mo. 597; Hollenbeck v. Railroad, 141 Mo. 97; Brady v. Railroad, 206 Mo. 509; Swearingen v. Mining Co., 212 Mo. 539; Oglesby v. Railroad, 150 Mo. 161; Scullin v. Railroad, 184 Mo. 695; Newcomb v. Railroad, 182 Mo. 867.
OPINION
Action for personal injuries, with damages alleged in the aggregate sum of $ 25,000. Verdict and judgment in favor of plaintiff for $ 10,000, from which defendant has appealed. As indicated by the name, defendant is a corporation engaged in the manufacturing business and to that end had and operated a factory in the city of St. Louis, in which factory plaintiff was one of its employees. His employment was through one Albert Schmidt, a foreman of the defendant. The petition is minute in detail and of great length, but boiled down, it avers: that plaintiff was working on a machine in said shops or factory known as a cutting machine; that in so doing he was under the direction of the foreman, Schmidt; that in the same room were numbers of other machines; that running through the room and for the purpose of operating all these machines was an axle or motor shaft; that the sundry machines in the room were operated by means of belts running down from this motor shaft; that this motor shaft was kept in continuous and rapid motion; that the cutting machine on which plaintiff worked was operated by a belt from this motor shaft, that came down the distance of ten feet at an angle of about thirty degrees, and then was placed upon a pulley fifteen inches or more in diameter; that the pulley was upon a shaft upon the cutting machine, and about twelve or fifteen inches from the end thereof; that at the end of the shaft was a handwheel, eighteen or twenty inches in diameter, by which the machine could be operated by hand; that in operating the machine by the belt, the belt was given one-half twist in its course; that said belt was negligently constructed of two or three pieces of leather of different breadths, and was laced together in several places; that by reason of the different widths of the pieces some would project out one-half inch further than the other portions, making dangerous and uneven corners on both sides of the belt; that defendant knew of this condition, or by the exercise of ordinary care might have known of it; that plaintiff was inexperienced and aged about twenty-one years, which fact was known to defendant; that he knew nothing of mending belts, except what he had seen. The particular accident with its surrounding circumstances are then thus described in the petition:
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