Henson v. Pascola Stave Company
| Decision Date | 16 November 1910 |
| Parties | W. F. HENSON, Respondent, v. PASCOLA STAVE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Faris & Oliver for appellant.
(1) Plaintiff was guilty of contributory negligence. Doerr v Brewing Assn., 176 Mo. 547; Leffler v. Brewing Assn., 127 Mo.App. 488; Barry v. Cemetery Assn., 211 Mo. 105; Sands v. Brewing Co., 131 Mo.App. 413; Huss v. Heydt Bakery, 210 Mo. 54; Dickey v. Dickey, 111 Mo.App. 304; Barnett v Himmelberger, 117 Mo.App. 58; Engleking v Railroad, 187 Mo. 158; Koppes v. Shoe Co., 116 Mo.App. 154; Ray v. Poplar Bluff, 70 Mo.App. 252; O'Donnell v. Patton, 117 Mo. 13; Roberts v. Railroad, 166 Mo. 370; Hogan v. Railroad, 150 Mo. 36; Loeffler v. Railroad, 96 Mo. 267. (2) Plaintiff Henson was a fellow-servant with Castleman, who is conceded to have cut and placed, or to have assisted in placing in the car the stake alleged to have been defective. Roland v. Tift, 20 L.R.A. (N. S.) 354; Schwind v. Floriston Co., 5 Cal.App. 197; Sanderson v. Lumber Co. 55 L.R.A. 908; Railey v. Garbutt, 112 Ga. 288; Georgia Coal Co. v. Bradford, 62 S.E. 193; Adams v. Iron Cliffs Co., 78 Mich. 271; Buck v. Zinc Co., 204 Pa. 132; Herbert v. Ferry Co., 107 Mo.App. 287; Brown v. Railroad, 95 Mo. 277.
Ward & Collins for respondent.
(1) It is only in cases where the facts are undisputed and are such that reasonable minds can draw no other conclusion than that the plaintiff was in fault; that the court can determine the question of contributory negligence as one of law. Johnson & Co. v. Refrigerator Co., 127 S.W. 692; Gress v. Railroad, 109 Mo.App. 720; Meng v. Railroad, 108 Mo.App. 553; Aechhart v. Trans. Co., 190 Mo. 611; Lawrence v. Ice Co., 119 Mo.App. 325; Mauerman v. Siemerts, 71 Mo. 101; Lamb v. Railroad, 147 Mo. 171; Owens v. Railroad, 84 Mo.App. 143; Moriarty v. Sulberger Co., 132 Mo.App. 650; Koener v. Car Co., 209 Mo. 141; Donohue v. Railroad, 91 Mo. 357; Kockenbrink v. Railroad, 172 Mo. 678; Degel v. Trans. Co., 101 Mo.App. 56; Lender v. Trans. Co., 103 Mo.App. 574; Potter v. Railroad, 136 Mo.App. 125; Frick v. Railroad, 75 Mo. 595; Adler v. Waggoner, 47 Mo.App. 25. (2) It is the duty of an employer to provide for his servants good, safe and properly constructed machinery and implements for carrying on his business and to keep them in good order and condition. Porter v. Railroad, 71 Mo. 66; Reber v. Tower, 11 Mo.App. 199; Sielar v. Railroad, 82 Mo. 430; Craig v. Railroad, 54 Mo.App. 523; Browning v. Railroad, 124 Mo. 56; O'Neal v. Plant Co., 58 Mo.App. 628; Zeller v. Light Co., 92 Mo.App. 107. (3) An employee had a right to assume that the appellant had done its duty and he could work on the car with safety. Doyle v. Railroad, 140 Mo. 1; Gibson v. Railroad, 46 Mo. 163; Burkar v. Rope Co., 217 Mo. 466; Bank v. Railroad, 40 Mo. 458; Combs v. Construction Co., 205 Mo. 367. (4) The master's obligation to furnish suitable machinery for the servant's use, or a safe place in which to work cannot be delegated to a servant, so as to relieve the master. Bridges v. Railroad, 6 Mo.App. 392; Bartlet v. Trorlicht, 40 Mo.App. 232; Stave Co. v. Sawyers, 119 S.W. 830; Browning v. Railroad, 124 Mo. 55; Parker v. Railroad, 109 Mo. 407; Herdler v. Range Co., 136 Mo. 3; Sackerwitz v. Biscuit Co., 78 Mo.App. 144; Moriarty v. Sulburger Co., 132 Mo.App. 650.
OPINION
This case was heard at the last term of this court and an opinion rendered by which the judgment was reversed without remanding. Motion for rehearing was sustained and the case reargued at this term.
Action for personal injuries received by plaintiff while in the employ of defendant, judgment for plaintiff for five thousand dollars, and defendant has appealed. Defendant is a corporation operating a stave factory at Pascola in Pemiscot county, and for the purpose of transporting logs from the timber to its factory had built a private railroad some four or five miles long over which logs were hauled upon flat cars made from old stock cars by removing all the frame work above the floor of the cars and attaching sockets to the sides of the cars in which wood stakes were inserted to hold the logs in place on the cars. Logs were loaded upon these cars in the timber by laborers in the employ of defendant, who were assisted in that work by the engineer and fireman in charge of the engine that pulled the cars back and forth from the factory to the timber. The logs were sixteen to eighteen feet long, and were loaded in two sections lengthwise on the car and two stakes were placed on each side of each section to hold the logs in place, making eight stakes to the car and these stakes were tied together with wires extending across the car. When one or more cars of logs were brought to the mill some of the men who worked at the mill would unload the logs, then go back to their ordinary work. To unload the logs the stakes holding them were cut on one side of the car and the logs rolled off on skids. On June 25, 1907, the foreman at the mill or factory directed Mr. Mockaby, his assistant, to unload a car of logs and he, with his plaintiff and two other men, proceeded to that work. The stakes were cut on one side and one tier or bulk of logs had been unloaded and part of the other tier when, in the effort to roll off a log a little longer than its fellows and lying on top and between two other logs, two men were at one end of it, one man at the other end, and plaintiff with a canthook stepped up on top of the logs and took hold of the log with the canthook, and as the men lifted in the attempt to roll this log off a stake on the opposite side of the car gave away and the logs rolled off the car on the wrong side carrying plaintiff with them and severely injuring his left leg, resulting in its amputation.
Plaintiff's action is grounded in negligence. The allegation of negligence is covered by the following which we quote from his petition. "Plaintiff states that said car belonged to the defendant and was old, rotten and wornout, and provided with but one pocket or socket in which to place stakes or standards on that side of said car where said logs fell off, and had but one stake or standard on that side of said car; that one stake or standard on said side of said car, on account of the great weight and pressure of the carload of logs against it, was totally insufficient to hold said load of logs; that said stake or standard was old, worm-eaten and defective; all of which said facts were then and there well known to the defendant, or by the exercise of ordinary care could have been known to defendant, but none of which facts were known to the plaintiff; and that by reason of all of said defects, insufficient stakes and wornout condition, said stakes or standards broke as aforesaid, causing the falling of the logs and the plaintiff and his injuries as aforesaid; and that said falling of the plaintiff and his injuries as aforesaid were directly caused by the carelessness and negligence of the defendant in failing and neglecting to provide a reasonably safe place at, around and about which for plaintiff to work, and in negligently and carelessly failing to provide a reasonably safe and sufficient car, with sufficient and safe appliances thereto, and sufficient and safe pockets and standards or stakes therein to well and safely hold the load of logs on said car."
The answer was a general denial, plea of contributory negligence and that the injury was caused by the negligence of a fellow-servant and that plaintiff did not properly care for the limb after receiving the injury.
Plaintiff's testimony tended to show that this car had but one stake on the side of the car where these logs fell and that this stake was partly rotten, and, therefore, weak and defective and that when the men, including plaintiff, began to pry and lift the log they were attempting to roll off, the defective stake gave way and caused the logs to roll off and injure plaintiff. Defendant's testimony tended to show that there were two stakes.
Appellant assigns as error the failure of the court to sustain a demurrer to the testimony and contends that plaintiff's testimony shows first, that he was guilty of contributory negligence in getting up on top of the logs with a canthook to roll a log off. We do not agree with this contention. Plaintiff testified that the other men occupied the space at the end of the log and there was no room for him to help with the canthook unless he got on top and that he took hold of the log near the center to keep it from twisting. This explanation of his action is entirely reasonable, and instead of showing negligence shows that his conduct was right and proper.
Second, that the cause of the injury was the breaking of a defective stake and defendant was not responsible because the party who placed the defective stake in the socket of the car was a fellow-servant of plaintiff.
If the party who selected and placed this stake was a fellow-servant of plaintiff then there can be no question that defendant is not responsible for his negligence unless the stake be regarded as a part of plaintiff's place to work and the master should, for that reason, he held responsible; for the employer is not ordinarily liable for injuries to an employee resulting from the negligence of fellow-servant except in cases in which the rule has been eliminated by statute.
Were plaintiff and the party who placed the defective stake in the car fellow-servants? There is probably no question that has given the courts more trouble than this one of determining when and under what...
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