Hawk v. McLeod Lumber Co.
Citation | 166 Mo. 121,65 S.W. 1022 |
Parties | HAWK v. McLEOD LUMBER CO. |
Decision Date | 17 December 1901 |
Court | United States State Supreme Court of Missouri |
1. There was a foreman over both a deck hand and a sawyer in a sawmill who superintended the premises generally, and hired and discharged all the employés. The deck hand testified that the sawyer could have a man dismissed at any time by speaking to the foreman. Held, that the deck hand and sawyer were fellow servants.
2. A master is not liable for an injury caused by the negligence of a fellow servant.
3. The fact that a servant injured by the negligence of a fellow servant is inferior in grade to the latter will not render the master liable for the injury.
4. In a suit by a servant for personal injuries, where plaintiff's evidence established that the servant whose negligence caused the injury was a fellow servant, and defendant's evidence confirmed that fact, it was error not to direct a verdict for defendant.
Appeal from circuit court, Butler county; Jno. G. Wear, Judge.
Action for personal injuries by Thomas Hawk against the McLeod Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.
Percy Werner and W. N. Barron, for appellant. H. N. Phillips, R. H. Stanley, and C. L. Keaton, for respondent.
Preliminary to an examination of the record in this case on the assignment of errors, the motion to dismiss the appeal must be determined. This motion is based upon alleged failures to comply with the rules of this court as to filing printed copies of the record and the briefs. An examination of the printed record filed, and the index thereto, and the briefs, shows a very satisfactory and substantial compliance with our rules, and hence the motion is overruled.
Another proceeding by certiorari has also been injected into the case, challenging the integrity of the bill of exceptions. We have examined the original bill filed with the clerk, together with the certificate of Judge Fort, and the affidavit of Mr. Barron, showing that this bill was necessarily placed in the hands of the printers in order to have the record printed, and that in this way the bill was soiled, but we fail to find any unauthorized mutilation of the record; and we further find that the official copy of the stenographic notes was lost without the fault of defendant, and thereupon the carbon copy was used, and it was necessary to correct it before it was signed by the judge. We see no occasion for reflecting upon the integrity of counsel or any one connected with the case, and find the charges unsupported.
1. The action is for damages resulting from personal injuries. The petition, omitting formal part, is as follows: The answer admitted that plaintiff was employed to roll logs from tram cars on the mill railroad to its log platform or deck, convenient to its sawyer, but denied every other allegation of the petition, and set up as a defense to the action his familiarity with the appliances and work, and his want of ordinary care, which directly contributed to his injury. The reply denied plaintiff had been guilty of any negligence contributing to his injury. Under the instructions of the court and the evidence, the jury returned a verdict for plaintiff for $5,000 damages. Defendant in due time moved for a new trial, which was denied, and it perfected its appeal to this court. The facts developed are quite simple. Thomas Hawk, the plaintiff, was, at the time of receiving the injuries of which he complains,...
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