Hawk v. McLeod Lumber Co.

Citation166 Mo. 121,65 S.W. 1022
PartiesHAWK v. McLEOD LUMBER CO.
Decision Date17 December 1901
CourtUnited 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.

GANTT, J.

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: "Plaintiff further states that he was in the employ of the defendant, the McLeod Lumber Company, from June until the 9th day of July, 1897, and that his duties while in such employ were to roll logs from the log cars on the mill railroad onto the log deck, convenient for the sawyer; that on the 9th day of July, 1897, while working at his place of duty, he was compelled a greater portion of the time, on account of the nature of the work, to keep his back toward the log carriage, and give his attention elsewhere than to the log carriage; and that he took this position at the direction of the foreman and vice principal of the defendant herein, relying on the better position of said foreman and vice principal for observation, and believing with reason that he would be safe from danger in so doing. Plaintiff further states that on account of the carelessness, fault, negligence, want of care and observation on the part of the foreman, namely, the head sawyer, who, in placing a log on the carriage by the use of a mechanical contrivance designated as a `nigger,' allowed and caused another log that was lying on the log deck to roll over toward the log carriage, so that the end of the log projected in the way of the carriage on its way from the saw, and, by reason of the projection of the end of said log as aforesaid, said log was struck by the log carriage on its return from the saw, and thrown and hurled violently against the leg and foot of the plaintiff, mashing and mangling said limb in such manner as to require amputation, from which said injury plaintiff suffered great physical pain and mental anguish, and still continues to suffer great physical pain and mental anguish. Plaintiff states that the injury aforesaid was not occasioned by any want of care on the part of the plaintiff herein, but, on the contrary, plaintiff was not aware of his danger until he was injured; that he received no warning from the foreman or other persons of his impending danger; and that the plaintiff was using due care and caution in the discharge of his duties. Plaintiff states that he was confined to his bed for two months, and has expended much money for medical attention and care, and will be compelled to expend money for medical treatment, attention, and care hereafter, and the said plaintiff is now a cripple for life, and his ability to earn wages and make a support has been greatly impaired and destroyed, by reason of which loss of ability to earn money and support, his mental anguish, and physical pain and suffering, he is damaged in the sum of thirty thousand dollars, for which he asks judgment, and for costs of suit." 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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    ...58, 32 Am. St. Rep. 673; Grattis v. Railroad, 153 Mo., loc. cit. 394, 55 S. W. 108, 48 L. R. A. 399, 77 Am. St. Rep. 721; Hawk v. Lumber Co., 166 Mo. 121, 65 S. W. 1022; Bane v. Irwin, 172 Mo., loc. cit. 317, 72 S. W. 522. In Harper v. Railroad, supra, this court said: "Such superintendent ......
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