92 S.W. 378 (Mo. 1906), Chrismer v. Bell Telephone Company

Citation:92 S.W. 378, 194 Mo. 189
Opinion Judge:LAMM, J. --
Party Name:MAMIE CHRISMER et al., by Next Friend, v. BELL TELEPHONE COMPANY, Appellant
Attorney:Seddon & Holland for appellant. Chas E. Peers, Jesse H. Schaper and John W. Booth for respondents.
Judge Panel:LAMM, J. Brace, C. J., Fox and Marshall, JJ., concurring; Valliant, Gantt and Burgess, JJ., dissenting. Gantt, and Burgess, JJ., concur with the Villiant in the views expressed in his opinion. Per Curiam. VALLIANT
Case Date:February 26, 1906
Court:Supreme Court of Missouri
 
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Page 378

92 S.W. 378 (Mo. 1906)

194 Mo. 189

MAMIE CHRISMER et al., by Next Friend,

v.

BELL TELEPHONE COMPANY, Appellant

Supreme Court of Missouri

February 26, 1906

Appeal from Franklin Circuit Court. -- Hon. John W. McElhinney, Judge.

Reversed.

Seddon & Holland for appellant.

The court erred in refusing to give the peremptory instruction offered by the defendant at the close of all the evidence. There were five distinct allegations of negligence made by plaintiffs in their petition, but there was no evidence to sustain any of them. Minnier v. Railroad, 167 Mo. 99; Hogan v. Railroad, 150 Mo. 36; Berring v. Medart, 56 Mo.App. 443; Smith v. Railroad, 69 Mo. 32.

Chas E. Peers, Jesse H. Schaper and John W. Booth for respondents.

(1) It is the duty of the master to furnish to the servant a reasonably safe place and reasonably safe machinery and appliances in which and with which to do the master's work. Holmes v. Brandenbaugh, 172 Mo. 64; Curtis v. McNair, 173 Mo. 283; Gardner v. Railroad, 135 Mo. 90. "It is true that the master is not bound to adopt any particular kind of machinery, but he is bound to procure that which is reasonably safe for the work designed, whatever kind he adopts." Bender v. Railroad, 137 Mo. 250; Gibson v. Railroad, 46 Mo. 163; Henry v. Railroad, 109 Mo. 493; Nicholds v. Crystal Glass Co., 126 Mo. 55. (2) The servant never assumes the risk of the master's negligence. Curtis v. McNair, 173 Mo. 280. (3) It is the duty of the master to exercise reasonable care commensurate with the nature of the business, to protect his servant from the hazards incident to it. Curtis v. McNair, 173 Mo. 280; Williams v. Railroad, 119 Mo. 316; Rodney v. Railroad, 127 Mo. 676; Herdler v. Buck's S. and R. Co., 136 Mo. 3; Fogarty v. Transfer Co., 180 Mo. 506. (4) The master is an insurer of the servant's safety against the negligence of the master himself (Zellar v. Missouri W. & L. Co., 92 Mo.App. 124), and it is contrary to public policy to allow the master to relieve himself even by contract from his own negligence. Curtis v. McNair, 173 Mo. 280. (5) Knowledge of agents instructed with the performance of the duties of the master is the master's knowledge, and negligence of such an agent is negligence of the master. Fogarty v. Transfer Co., 180 Mo. 503. (6) The accident which resulted in the death here sued for was caused by a skiff being overturned in the Missouri river, while being used by appellant engaged in transporting its servants from the south bank of the river to appellant's barge stationed in the river for the purpose of there performing work for appellant. The work had been going on for five days and such transportation had been going on daily many times a day during the whole five days along a course extending northwardly from the shore to the barge a distance from 250 to 275 feet, and in that general course varying from a single and fixed track, as was inevitable in the rowing of a skiff across swiftly moving water. Along this course appellant at the beginning of the work stretched a strong wire above the water. Two days before the overturning of the skiff, appellant slacked the wire so that it sagged into the water and for the greater part of its length lay underneath the water where it could not be seen. In the water it was strongly deflected to the east by the strength of the current and constituted an evidently dangerous obstruction to the navigation of the river in the skiff along said course of navigation. The accident was caused by an oar of the skiff coming in contact with that obstruction at a place where it was concealed from view by three feet of the muddy water of the river. Chrismer, servant of the appellant, whose death is sued for, was in the discharge of his duty as such servant in the skiff on his way to the barge. The skiff was overturned without his fault and he was thereby drowned. The case, therefore, in so far as it relates to the negligence of the master in making and maintaining the obstruction at the place, and under the circumstances, and in the manner in which it was maintained, involves merely an application of the law declared in the case of Murphy v. Railroad, 115 Mo. 111. In that case the court held as follows, to-wit: (a) "A railroad company is in duty bound to place its signal posts, telegraph poles, cattle-guard fences and other structures used in connection with the road, at a reasonably safe distance from the track, to the end that they will not be dangerous to those engaged in operating its trains." (b) "It is not sufficient that such structures should answer the purpose for which erected. In building them the safety of the servants in operating the trains must be considered." (c) "If it becomes necessary to place such structures so near to the track as to be dangerous to such operatives, then it is the duty of the company to warn them of the danger so that they can govern their conduct accordingly." (d) "When it is found that the company has itself placed such a structure so near the track as to be dangerous to its servants in the discharge of duties assigned to them, and an injury has occurred from that cause without fault on the part of the servant injured, the liability of the company is fixed. Additional proof is not necessary in such a case." Murphy v. Railroad, 115 Mo. 118. (7) Having provided for the performance of its work on the barge in the river a skiff and oars for the transportation of its workmen to and from the barge in the discharge of their duties as appellant's servants, it was the duty of appellant to provide and furnish a sufficient force of competent oarsmen to properly row and manage the skiff in such transportation. This is merely one application of the law which makes it the duty of the master generally to provide a sufficient and competent force of workmen for the performance of his business. Coontz v. Railroad, 121 Mo. 659. It is unquestionably the law that a master must furnish a sufficient number of men to do his work with reasonable safety to his employed servants. Stoddard v. Railroad, 65 Mo. 514; McMullen v. Railroad, 60 Mo.App. 236. (8) The mere knowledge of Chrismer, at and before the time he was drowned, of the existence of the submerged cable, and of the place next the barge where it emerged from the water, and that he, working under the immediate orders and supervision of appellant's foreman assisted in placing the wire strand in position, does not interpose any obstacle to the maintainance of this action. Scott v. Springfield, 81 Mo.App. 321; Sullivan v. Railroad, 107 Mo. 78.

LAMM, J. Brace, C. J., Fox and Marshall, JJ., concurring; Valliant, Gantt and Burgess, JJ., dissenting. Gantt, and Burgess, JJ., concur with the Villiant in the views expressed in his opinion.

OPINION

[194 Mo. 196]

Page 379

In Banc

LAMM, J. --

This action was brought by the three minor children of Edward L. Chrismer, for the death of said Edward by the alleged negligence of defendant corporation. The trial resulted in a judgment in their favor for $ 3,200, signed by ten out of twelve jurors, and defendant appealed to this court on assignments of error, one of which challenges the constitutionality of the law permitting less than twelve jurors to render a verdict. As such constitutional question, since Gabbert v. Railroad, 171 Mo. 84, decided December 24th, 1902, is no longer considered an open one, it is not deserving of, and therefore will not receive attention; but as the appeal in this case was taken prior to the date the opinion in the Gabbert case was handed down, the cause will be considered on its merits.

Attending to the case made on the facts, it is as follows:

Edward L. Chrismer was the rise of thirty-five [194 Mo. 197] years of age and was an employee of appellant corporation from March 18th, 1901, to July 13th of the same year. Prior to his taking service with appellant, he was a lineman and had worked for railroad companies and in "building artesian wells" but was a novice as a river waterman. After becoming appellant's servant, he worked in a construction gang and part of the time on cable work, so that, on July 13th, 1901, it befell that he was one of a construction and repair gang of twelve men engaged on the repair of appellant's submarine cable crossing the Missouri river from Washington in Franklin county to the north shore of said river in Warren county. This gang was under Thompson, a general foreman, and Caesar, a subforeman. It seems that appellant's cable was connected with the aerial wires and poles on either shore, and consisted of a bundle of wires compressed in a jacket or otherwise held together in a cable form two inches thick. As it lay on the river bed, it got out of repair and about five days prior to the date in question, said construction and repair gang came from St. Louis to raise and repair the cable.

The plan and modus operandi adopted for the work were as follows: a water craft was chartered. This craft, called a flat boat or barge, was a craft with rake ends, standing, as ladened at the times in hand, about three feet from the gunwale to the water line, was about 35 or 40 feet long by 15 feet wide, and was such a craft as was generally used for carrying material, freight, ferrying, etc., on river waters. It was equipped with pulleys and certain mechanical appliances, among others, those appurtenant to bringing material from the shore on a steel wire.

As the said cable is distinguished in the evidence from said steel wire, the latter being called a "strand," and as the witnesses do not always discriminate in their testimony between the cable and the strand, hereinafter, to aid in clearness of statement, said cable will be referred [194 Mo. 198] to as the "cable" and "strand" will be used to designate the steel wire...

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