Stephens v. Deatherage Lumber Company
| Decision Date | 27 March 1905 |
| Parties | JOHN A. STEPHENS, Respondent, v. DEATHERAGE LUMBER COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Andrew F. Evans, Judge.
REVERSED.
Judgment reversed.
Botsford Deatherage & Young for appellant.
(1) Neither the defendant nor Floyd were in any way negligent. (2) The plaintiff was himself negligent, and his negligence caused or contributed to the injury which he received. Moore v. Railroad, 146 Mo. 572; Palmer v. Tel Co., 91 Mo.App. 106; Hurst v. Railroad, 163 Mo 322. (3) Plaintiff's counsel in his argument assumes that there must have been a foreman in connection with the work in question. There is nothing in the case to show that there was any necessity for a foreman. (4) Floyd was not a foreman or vice-principal. (5) The power to employ, especially under such circumstances, is not and does not constitute the persons possessing that power, a viceprincipal. Glover v. Nut Co., 153 Mo. 342; Hamilton v. Mfg. Co., 4 Mo.App. 565; Mining Co. v. McNally, 15 Ill.App. 188; Tuhe Works Co. v. Bedell, 96 Pa. St. 175. (6) It is well settled that employees may act in a dual capacity. Even if Floyd could be regarded, for some purposes, as performing the personal duties of his master, the work that he was doing on the car in assisting in the unloading of the timbers, was as a fellow-servant. Roland v. Railroad, 20 Mo.App. 468; Marshall v. Shricker, 63 Mo. 308; McGowan v. Railroad, 61 Mo. 528; Lee v. Iron Works, 62 Mo. 565; Moore v. Railroad, 85 Mo. 597; Hoke v. Railroad, 88 Mo. 370; Schaub v. Railroad, 106 Mo. 92; Curd v. Eddy, 129 Mo. 520; Hank v. Lumber Co., 166 Mo. 121; Smith v. Railroad, 151 Mo. 409. (7) A common servant may be entrusted with duties personal to the master. Neglect of the servant in such a case makes the master liable. A servant of superior rank may, as in the case of Floyd, who was a travelling solicitor or salesman, be called upon, as he was, to temporarily fill the place of an ordinary workman. In the latter case, if the servant is negligent, the master is not liable. Baily on Liability of Master to Servant, 244; Crispin v. Babbitt, 81 N.Y. 520; Slater v. Jewett, 85 N.Y. 74; Doty v. Driving Co., 76 Me. 145; Railroad v. Smith, 8 C. C. A. 663, 668; Dwyer v. Express Co., 82 Wis. 307; 12 Am. and Eng. Ency. Law (2 Ed.), 950. (8) The decisions of the courts in other States agree with the Supreme and appellate courts in this State in holding that in cases like this the master is not liable. Railroad v. Smith, 59 Ala. 245; Tyson v. Railroad, 61 Ala. 554; McDonald v. Mfg. Co., 68 Ga. 844; Hanby v. Paper Co., 110 Ga. 1; Gunn v. Willingham, 111 Ga. 430; Railroad v. Baugh, 149 U.S. 368; Railroad v. Regan, 160 U.S. 259; Railroad v. Peterson, 162 U.S. 346; Mining Co. v. Wheelan, 168 U.S. 86; Cooper v. Railroad, 103 Ind. 305; 12 Am. and Eng. Ency. of Law (2 Ed.), 949-958; McCasker v. Railroad, 84 N.Y. 81; Brick v. Railroad, 98 N.Y. 215; Hissey v. Coger, 112 N.Y. 616; Copasso v. Woolfolk, 163 N.Y. 472; Allen v. Goodwin, 92 Tenn. 356; Stevens v. Doe, 73 Cal. 27; Donovan v. Ferris, 128 Cal. 48; Rehm v. Railroad, 164 Pa. St. 91; Ricks v. Flinn, 196 Pa. St. 268; Railroad v. May, 108 Ill. 300; Linvall v. Woods, 41 Minn. 212; Hoth v. Peters, 53 Wis. 412; Johnson v. Water Co., 77 Wis. 51; Dwyer v. Express Co., 82 Wis. 307; Klochinski v. Lumber Co., 93 Wis. 424.
Porterfield, Sawyer and Conrad for respondent.
(1) If there might be said to be in the record any evidence of contributory negligence on the part of plaintiff, which we deny, it was of that character which is peculiarly within the province of the jury to determine. Two juries have found, by their verdicts for the plaintiff, that he was not guilty of contributory negligence, and, that the negligence of defendant's foreman, Floyd, caused plaintiff's injuries. Petty v. Railroad, 88 Mo. 306; Cook v. Railroad, 19 Mo.App. 329. (2) Defendant's next contention that Mr. Floyd was a fellow-servant with the plaintiff, the teamster, Mr. Halter, and Mr. Mahoney is equally untenable. The evidence on both sides established the foremanship of Floyd so clearly, so undisputably that there is no ground for debate. Add to this the evidence that he in fact supervised the workmen, and the inference that he was authorized to act as foreman by the general manager of the defendant cannot be escaped. Stephens v. Lumber Co., 98 Mo.App. 370; Donnell v. Mining Co., 103 Mo.App. 349; Strode v. Conkey, 105 Mo.App. 12, 78 S.W. 678; Gormley v. Iron Works, 61 Mo. 494; Moore v. Railroad, 85 Mo. 595; Hutson v. Railroad, 50 Mo.App. 303; Dayharsh v. Railroad, 103 Mo. 576; Schroeder v. Railroad, 108 Mo. 329; Miller v. Railroad, 109 Mo. 356; Card v. Eddy, 129 Mo. 510; Russ v. Railroad, 112 Mo. 52; Steube v. Foundry Co., 85 Mo.App. 646; Bane v. Irwin, 172 Mo. 317; Richardson v. Mesker, 171 Mo. 667. (3) Mr. Funk and all the other officers of the defendant remained away from this work and entrusted its doing and its management in all its details to Mr. Floyd, and its liability is the same as if what Mr. Floyd did had been done by the highest officer of the defendant company. Donnell v. Mg. Co., 103 Mo.App. 349; Strode v. Conkey, 105 Mo.App. 12, 78 S.W. 678; Brothers v. Carter, 52 Mo. 376; Hutson v. Railroad, 50 Mo.App. 305; Stuebe v. Found. Co., 85 Mo.App. 647; Dayharsh v. Railroad, 103 Mo. 576; Miller v. Railroad, 109 Mo. 356; Card v. Eddy, 129 Mo. 510; Russ v. Railroad, 112 Mo. 52; Bane v. Irwin, 172 Mo. 317. (4) The fact that Mr. Floyd worked more or less with the men under him did not make him a fellow-servant of the plaintiff and does not relieve the defendant of liability. This exact point is decided in the following cases: Gormley v. Iron Works Co., 61 Mo. 495; Dayharsh v. Railroad, 103 Mo. 577; Russ v. Railroad, 112 Mo. 53; Hutson v. Railroad, 50 Mo.App. 303; Haworth v. Railroad, 94 Mo.App. 224; Bane v. Irwin, 172 Mo. 317; Garland v. Railroad, 85 Mo.App. 582; Donnell v. Mining Co., 103 Mo.App. 349; Strode v. Conkey, 105 Mo.App. 12, 78 S.W. 678.
This cause was here before upon plaintiff's appeal from an order sustaining a motion for new trial. We affirmed the action of the learned trial judge--98 Mo.App. 365, 73 S.W. 291. Upon a retrial plaintiff recovered judgment in the sum of twelve hundred dollars and defendant is now the appealing party.
But one question will be considered in this opinion as its solution is decisive of the rights of the parties. We have reached the conclusion that under the facts disclosed by plaintiff's evidence, considered either alone or in connection with those brought out by defendant, a recovery cannot be permitted. The injury sustained, if chargeable at all to negligence, was the direct result of the act of a fellow-servant of plaintiff, and not to any act for which defendant as master is liable.
The pertinent facts are as follows: Defendant, a lumber dealer, at and prior to the time of injury, April 16, 1901, was hauling heavy timbers from cars on track in a railroad yard in Kansas City for use in a building under construction. The car being unloaded when plaintiff was hurt was an open coal car provided with sides and ends forming an enclosure some three feet in height. Defendant was using its own team and wagon which were in charge of one of its regular teamsters. The wagon was standing alongside the car. Its floor was about on a level with that of the latter but in order to remove the timbers from car to wagon it was necessary to raise them over the side of the car. The timbers were heavy, being some sixteen feet long and eight inches by fourteen in their other dimensions. Two wooden skids about eight feet long were placed in such a manner as to make an inclined plane from the wagon bed to the top of the car side down upon which the timbers were moved. Four men were engaged in this work, two upon each vehicle. Those in the car raised the timbers to the top of the plane, placed them in proper position thereon and started them down. The men on the wagon attended to adjusting the skids as needed from time to time and placing the timbers in position on the wagon. The men were not stationed but worked inter-changeably in the several positions as occasion required. When the accident occurred plaintiff was working on one end of the wagon platform; on the other end was the teamster. Floyd and Monahan were on the car, the former working opposite to the teamster, the latter opposite plaintiff. Floyd and Monahan raised a piece of timber to the top of the plane preparatory to sending it down; the teamster and plaintiff adjusted their respective skids; Floyd gave the warning, "look out!" the teamster was then out of the way and Floyd released his end of the beam; Monahan held his end a brief time longer which caused the Floyd end to reach the wagon a few feet ahead of the other, but the latter end arrived there in time to strike plaintiff who had failed to escape and to inflict a serious injury to his left leg.
Plaintiff's cause of action is based entirely upon the alleged negligence of Floyd in prematurely releasing his end of the beam without allowing sufficient time for plaintiff to get out of the way. Defendant, the master for whom the work was being done, is sought to be held liable under the contention that Floyd was acting in the capacity of foreman and, therefore, was as to plaintiff the master's vice-principal. The facts showing the existence of such relation were a bitterly contested issue. It appears that Floyd was a travelling salesman for defendant and had been temporarily pressed into service to aid in the work of unloading cars, which had been progressing for several days, because defendant was short-handed. On the morning of the day the accident occurred the...
To continue reading
Request your trial