Mertz v. A. Leschen & Sons Rope Company

Citation156 S.W. 807,174 Mo.App. 94
CourtCourt of Appeal of Missouri (US)
Decision Date06 May 1913
PartiesNICHOLAS MERTZ, Respondent, v. A. LESCHEN & SONS ROPE COMPANY, Appellant

Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.

Judgment affirmed.

Watts Gentry & Lee for appellant.

The demurrer to the evidence should have been sustained: (a) Because if Varwig was negligent in letting the wire slip from his hands and injure the plaintiff, his negligence was that of a fellow-servant for which the master is not liable. The men were under a common superior, engaged in the common enter-prise of making a strand of wire rope, in the same grade of service and with ample opportunity to observe each other's actions and report delinquencies to a common superior. Under such circumstances, even though Varwig had the power to say when to stop or start the machine, he and the plaintiff were fellow-servants. Padgett v. Iron & Steel Co., 140 S.W. 943; Forbes v. Dunnavant, 198 Mo. 193; Herbert v. Wiggins, 107 Mo.App. 287; Murray v. Cable & W. Co., 98 Mo. 573; McCarty v Hotel Co., 144 Mo. 397; Hawk v. Lumber Co., 166 Mo. 121. (b) The demurrer to the evidence should have been sustained because the slipping of the wire was wholly unexplained. Where the evidence reveals the fact that an injury may have occurred from either one of two or more causes for one of which the master would be liable and for the others of which he would not be liable, plaintiff fails to make out his case unless the evidence clearly shows that the injury resulted from the cause for which the master would be liable. Garansson v. Manufacturing Co., 186 Mo. 300.

George Safford and Barclay, Fauntleroy & Cullen for respondent.

(1) For damages caused by negligence of one authorized by the master to perform a nondelegable duty of the master, there being no contributory negligence, the master is liable. Smith v. Car & F. Co., 122 Mo.App. 610; Hagan v. Mining Co., 131 Mo.App. 386; Knight v. Donnelly Bros., 131 Mo.App. 152; Doss v. Railroad, 135 Mo.App. 643; Burkard v. Rope Co., 217 Mo. 466. (2) For damages caused, in part, by the negligence of the master in the performance of a nondelegable duty, and, in part, by the negligence of a fellow-servant in the performance of a delegable duty, the master is liable; i. e., contributory negligence of a fellow-servant is no defense. Young v. Schickle, 103 Mo. 324; Dayharsh v. Railroad, 103 Mo. 570; Bluedorn v. Railroad, 108 Mo. 439; Foster v. Railroad, 115 Mo. 165; Browning v. Wabash, 124 Mo. 55; Deweese v. Mining Co., 128 Mo. 423; Hutson v. Railroad, 50 Mo.App. 300; Ellingson v. Railroad, 60 Mo.App. 679; Hayworth v. Railroad, 94 Mo.App. 215; Moriarity v. Swartzschild & Sulsberger Co., 132 Mo.App. 650-655; English v. Shoe Co., 145 Mo.App. 439-451; Harvester Co. v. Bracak, 227 Ill. 71; Dougherty v. Realty Co., 146 Ill.App. 219. (3) The duty to warn is a nondelegable duty, for negligence in the performance of which, in the absence of contributory negligence, the master is liable. Miller v. Railroad, 109 Mo. 357; Doss v. Railroad, 135 Mo.App. 648; Mihileck v. Mignery, 155 Mo.App. 325; Schlavick v. Shoe Co., 157 Mo.App. 83.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action for personal injuries consisting of the loss of an eye, suffered by plaintiff while in the employ of defendant as its servant. Plaintiff recovered and defendant prosecutes the appeal.

Defendant is a manufacturer of wire rope, and at the time that plaintiff received his injuries, his duties ordinarily consisted in operating a machine designed for making such rope. The machine in question is a very complicated one, and nothing like a complete description of it need be attempted. It had a number of bobbins which carried the separate strands of wire and from which these separate wires were unwound, later to be wound into a rope or cable. There were three of these machines, of practically the same kind, placed in a row. One of them was ordinarily operated by plaintiff, another by one Baer and the third by one Varwig. These three machines could be operated separately, as they ordinarily were, or they could be coupled up and operated together, as was done when it was desired to make a large wire rope or cable. When the machines were run separately each operator attended to his own machine; when they were coupled however and running together Varwig had charge of the three machines. One Berding was the foreman over this department, having charge of the entire floor upon which these machines were situated. It was he who instructed plaintiff how to operate his machine when plaintiff was first put to work at it. Plaintiff had been working at this machine about a month prior to the accident.

All three of these operators were subject to the general orders and directions of the foreman, Berding. However, when the three machines were coupled up as described above, it appears that under the master's orders Varwig was to have charge of and supervision over all three of the machines, with authority to give directions to the other two men. With respect to his own duties and authority, when the three machines were running together, a portion of Varwig's testimony, as it appears in the record, is as follows: "I had to give directions to two men. . . . Mr. Mertz was working under me and he received orders from me. He had been working in that department about a month and he received his directions from me, that is provided we were coupled up. We had three machines coupled together when he was working under me; otherwise I didn't have anything to do with him. When the three machines were working together, I had charge of them. . . . At all times, except when the three were coupled, I had no authority whatever over Mertz and gave him no orders of any kind. . . . Whenever we coupled up, I was supposed to instruct them."

In regard to this same question, a portion of plaintiff's testimony appears as follows: "When the three machines were coupled together it took three of us to run them. Mr. Varwig had charge of the crew of three and gave instructions to me and to Mr. Baer. When they were coupled together no one but Varwig gave the instructions as to how the machines were to be run. . . . Whenever we ran together he had charge of them. Mr. Berding told us to go to Varwig for instructions when we were coupled up together. That was when I first went on."

At the time plaintiff received his injury, the three machines were coupled and running together, for the purpose of making a larger cable out of the wires that came from the three machines. When so running the finished cable came out from Varwig's machine. It started at plaintiff's machine with twelve wires, continuing through Baer's machine, where it received twelve more wires, on through Varwig's machine, which carried eighteen wires. In addition to these smaller wires, there was a big wire in the center of the cable that began with plaintiff's machine, and about which the smaller wires were wound. Each small wire was unwound from a separate bobbin, and, by complicated movements of the machines, the wires were ultimately wound into a large strand of wire rope.

When these machines were thus being operated in conjunction with each other, any one of the operators could stop all three machines. This was done in case a wire broke, or a bobbin ran out of wire, etc. On the day in question these three machines were being so operated, when a bobbin on plaintiff's machine became empty and the machines were stopped to fill this bobbin. In doing this it was necessary to put the wire through a small hole in what is called the journal of the flier. It appears that plaintiff had put wires on larger bobbins, but that he had never done so with a small bobbin such as had become empty, and Varwig testified that it had to be done in a way different from that which was employed in the case of larger bobbins such as plaintiff had been using. It appears in fact that plaintiff had never put a wire through one of these journals when the machines were coupled up. In order to do this Varwig took hold of the end of the wire, telling plaintiff to hold the bobbin, to tighten the tension, and directing plaintiff to watch how he did it, saying: "Watch me while I put this through the flier so that you can do the same thing the next time yourself." Varwig testified that he took hold of the wire with his right hand about four inches from the end of the wire, with this hand under the wire, holding the latter between his thumb and his fingers; that with his left hand he grasped the wire probably about two and one-half or three feet from his right hand. He was using his right hand to put the wire into the hole in the journal of the flier, keeping all the time his left hand about two and one-half or three feet further down on the wire, and was starting to put the wire into this hole. While he was so doing he called to plaintiff, telling him to watch how it was done so that plaintiff could do the same thing thereafter. Thereupon plaintiff, who was nearsighted, and which Varwig knew, placed his face within about two feet of the end of the wire to watch Varwig thread it into the hole in question. Varwig did not get the wire into the flier, but it slipped or flew out of his right hand, the end of the wire flying upward and springing backward, striking plaintiff in the eye, and putting his eye out. It appears that the wire did not move at all from Varwig's left hand. He did not let go of the wire with this hand at all. In other words it does not appear that the wire was jerked or pulled from Varwig's hands or that it slipped longitudinally out of his right hand; on the contrary it appears that when he had hold of it from beneath, with the...

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