William Bros. v. Cartter

• Decision Date: 31 March 1873
• Citation: 52 Mo. 372
• Parties: WILLIAM BROTHERS, Respondent, v. MILO S. CARTTER, et al., Appellants.
• Court: Missouri Supreme Court

52 Mo. 372

WILLIAM BROTHERS, Respondent,

v.MILO S. CARTTER, et al., Appellants.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Lackland, Martin & Lackland, and Dryden & Dryden, for Appellants.

I. The plaintiff could judge of the sufficiency of the braces, and other timbers, as well as the defendants. In such cases the master is not liable. (Williams vs. Clough, 3 H. & N. 259; Dynen vs. Leach, 26 Law Journal, [N. S.] Exch., 221; Wright vs. N. Y. Cent. R. R., 23 N. Y., 566; Hayden vs. Smithville Manuf'g Co., 29 Conn., 548; Griffith vs. Gidlow, 3 Hurlst, & Norm., 648; Devitt vs. Pac. R. R., 50 Mo., 302; Warner vs. Erie R. R. Co., 39 N. Y., 470; Ormond vs. Holland, El. B. & El., 100.)

II. The evidence showed that the failure to supply was the act or omission either of Graham or Logan. They were fellow servants with plaintiff. The doctrine claimed by plaintiff's counsel, that a superintendent, such as Graham, is a “representative,” or “ alter ego” of the master, is not well founded. (Wilson vs. Merry, 1 Scotch & Div., Appeals 326; Feltham vs. England, 2 Queen's B., 32; Gallaher vs. Piper, 16 C. B. [N. S.] 680, and note to same; Searle vs. Lindsay, 11 C. B. [N. S.] 430; Wigmore vs. Jay, 5 Exch., 354; Albro vs, Awagam Can. Co., 6 Cush., 75; Wright vs. New York Cent. R. R., 25 N. Y., 562; Warner vs. Erie R. R. Co., 39 N. Y. 470; Faulkner vs. Erie R. R., 49 Barb. 324; McDermott vs. Pacific R. R., 30 Mo. 115; Caldwell vs. Brown, 53 Pa. St., 453.)

III. The duty of finding, selecting, and furnishing the materials necessary for a work, is one which the master must very often entrust to his servants. He cannot give personal attention to that part of the business, any more than he can to the details of the application of the material furnished. He can no more foresee and prevent the neglect of his servants in furnishing than he can their neglect in applying. The fellow servant can foresee such neglect as well as the master, and takes the risk of it. (Wright vs. N. Y. Cent. R. R., 25 N. Y. 572; Gallaher vs. Piper, 16 C. B. (N. S.) 680; Warner vs. Erie R. R. Co., 39 N. Y., 470; Priestly vs. Fowler, 3 M. & W., 1.)

Steward & Wieting, for Respondent.

The master cannot evade his responsibility by delegating to another the power to employ and discharge servants and to provide suitable materials. (Shearman & Redfield, on Negli gence § 102; Gibson vs. Pacific R. R., 46 Mo., 163; Harper & Indianapolis R. R., 47 Mo., 567; 45 Ill., 201; 52 Ill., 183; 22 Ala., 294.)

WAGNER, Judge, delivered the opinion of the court.

This was an action for damages received by the plaintiff while in the employ of defendants in the construction of a bridge across the Aux Vasse river, in the County of Callaway, Missouri, for the Fulton and Jefferson Branch of the Louisiana and Missouri Railroad. The material averment in the petition is, that while plaintiff was at work on the bridge, one span fell, and plaintiff was precipitated a distance of seventy-three feet upon the rock and debris beneath, and was thereby seriously injured.

The cause of the falling of this span of the bridge is alleged to have been the insufficiency in amount and quality of the bracings and false work used in the construction of the span, that defendants failed to furnish proper and sufficient material for the erection of said structure, and because of the removal by defendants of supports and bracings, which had been furnished for this purpose, to make the structure safe and secure during its construction; and that defendants well knew of the insecure condition of the structure and of the deficiency and insufficiency of the materials furnished for the same and of the dangerous condition of the structure, and that in consequence of defendants' negligence and recklessness in and about the premises, plaintiff was injured, &c.

The plaintiff gave evidence strongly tending to prove his averments.

It appears that the defendants did not personally have charge of the work, and what they knew of its character and condition was from being about it occasionally during its progress.

They did not attend personally to the purchase and collection of materials, or to directing the construction. The former duties were committed to the superintendent Graham, and the latter to the foreman Logan.

The Jury rendered a verdict for the plaintiff, and as there was ample evidence to support it, of course this Court will not interfere, unless they were misled by wrong instructions.

The instructions given for both parties taken together fairly presented the law, and the second instruction given for the plaintiff is the only one that is seriously complained of here. That instruction is, as follows: “If the Jury find from the evidence that one John Graham was the Superintendent for defendants of the work on the bridge in question, and as such had entire control and charge thereof with power to employ and discharge hands, and to provide and remove material, and that said Graham was the representative of defendants in the construction of said bridge, and that plaintiff was subject to his orders and directions, then the Jury are instructed that said Graham was not a fellow servant with the plaintiff, and that his acts and conduct in connection with said bridge were and are the acts and conduct of defendants so far as this case is concerned.”

The other instructions essentially lay down the law as it...