Acebedo v. American Car & Foundry Co.

• Decision Date: 11 January 1927
• Docket Number: No. 19528.,19528.
• Citation: 291 S.W. 505
• Parties: ACEBEDO v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

291 S.W. 505

ACEBEDO v. AMERICAN CAR & FOUNDRY CO.

No. 19528.

St. Louis Court of Appeals. Missouri.

January 11, 1927.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Merced Acebedo against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry, of St. Louis, for appellant.

Walter L. Brady, of St. Louis, for respondent.

SUTTON, C. J.

This is an action to recover damages for personal injuries. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $1,000, and the defendant appeals.

Defendant, at the time plaintiff received the injuries for which he sues, maintained and operated a plant in the city of St. Louis, and was engaged in the construction of railroad cars at said plant. Plaintiff was in the employ of defendant as a workman in the plant. He was a member of a crew consisting of about ten workmen, who were working on a car under construction. This crew was working under the direct supervision of defendant's foreman, who told the men what to do, and directed them in their work. The workmen used hammers in their work, and the hammering caused a vibration of the car on which they were working. Plaintiff was working underneath the car. His evidence tends to show that while he was engaged in his work the foreman came up to the car to hurry the work, and taking a sledge hammer, weighing about 16 pounds, from one of the other workmen, struck a few blows "with it, and then placed it on two beams on the framework of the car about 4 or 5 feet above the ground, whence it' immediately fell on the plaintiff's foot and injured it.

The foreman, testifying on behalf of the defendant, stated that he was defendant's foreman, and, as such, had charge of the crew in which plaintiff worked, and showed the workmen what to do, and that he sometimes worked with them to help them out. He further testified: "At the time of plaintiff's injury I had charge of him, directed his movements, and told him what to do. I was his boss."

The defendant insists here that the court below erred in overruling its demurrer to the evidence, because it appears from plaintiff's own testimony, without any dispute in the record, that the act of the foreman in hitting several blows with the hammer and placing it carelessly upon two beams, from which it fell upon plaintiff's foot, was the act of a mere fellow servant, regardless of the authority that the foreman had to give orders to the workmen and direct and control them in their work. The defendant invokes the dual capacity doctrine. This doctrine applies where the master, by the terms of the employment, confers upon the servant both the duties of a vice principal and of a fellow servant. In such case, in order to relieve the master from liability for the negligent act of the servant, it must appear that the act was committed by the servant in his capacity as a fellow servant, and not in his capacity as a vice principal. If the act is ascribable to the servant's duties as vice principal, the master is liable. In other words, if the act appears to be one of superintendence, and not of fellow service, the superior must respond. Funk...