Adair v. Kansas City Terminal Ry. Co.

• Decision Date: 02 March 1920
• Docket Number: No. 19868.,19868.
• Citation: 220 S.W. 920,282 Mo. 133
• Parties: ADAIR v. KANSAS CITY TERMINAL. RY. CO. et al.
• Court: Missouri Supreme Court

220 S.W. 920

282 Mo. 133

ADAIR v. KANSAS CITY TERMINAL. RY. CO. et al.

No. 19868.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Opinion and judgment modified April 10, 1920.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Suit by Herschel O. Adair against the Kansas City Terminal Railway Co., H. P. O'Hagan and others, partners doing business as O'Hagan & Lake, and O'Hagan & Lake, a corporation. Judgment of nonsuit, and plaintiff appeals. Affirmed as to first-named defendants; reversed and remanded as to other defendants.

This is a suit for personal injuries for which the damages are laid at $20,000.

The amended petition upon which it was tried states, in substance, that the defendant Kansas City Terminal Railway Company is a railway corporation owning and operating, among other railway properties, the Kansas City Union Depot; that the defendants H. P. O'Hagan, Patrick O'Hagan, and Thomas A. Lake were, at the time the injuries were inflicted, partners doing business under the name and syle of O'Hagan & Lake, and that the corporation of the name was subsequently organized by the same persons, its corporate stock being represented by the assets of the partnership. It also states that at the time of the injury the plaintiff was employed by O'Hagan & Lake in the construction of a steam tunnel for the railway company, and was directed by his employers to do the work subject to the supervision and orders of the railway company, the agents of which came upon the work and gave directions for its prosecution, which the plaintiff obeyed, although he knew nothing about the terms of the relation existing between the railway company and his employers.

The circumstances of the injury alleged in the petition will sufficiently appear in the statement of facts which follows.

The answer of the railway company contained (1) a general denial; (2) a plea of contributory negligence sufficient to cover the facts in evidence; (3) that the injury, if any, was due to the acts of the plaintiff's fellow servants or those whom he controlled and directed as foreman; (4) that it arose out of the risk of the employment in which plaintiff was engaged and of which he had full notice and knowledge; and (5) that plaintiff, at the time and place of the accident, was an employé of O'Hagan & Lake, and was not an employé of the railway company, that the work on which he was engaged at the time was work of said copartners being done by them as independent contractors under a contract with the railway company, and of which said partnership had sole and absolute control and direction, and that the railway company did not have or exercise any authority or control whatever over its employés.

The defendant partners pleaded by answer (1) general denial, (2) contributory negligence, (3) assumption of risk, and (4) that the negligence, if any, consisted of acts of fellow servants and others who were under the direct supervision and control of plaintiff as foreman in the performance of the same work.

The plaintiff replied by general denial.

The facts developed in evidence, so far as necessary to the determination of the questions at issue here, are as follows:

The defendant partners as such were, on August 14, 1913, the date of the accident, constructing for the defendant railway company a steam tunnel connecting is power house with its Union Passenger Station in Kansas City. The railway company had inspectors on the job for the purpose of seeing that the contract was properly performed by the use of labor competent for that purpose, and at times gave directions to that end. The work consisted of a ditch seven feet wide and from seven to nine feet deep, according to the surface of the ground, lined with concrete. The plaintiff was employed as a labor foreman or boss in the work of excavation and pouring concrete. Until about three days before the accident one Drake had been foreman in charge of carpenters engaged in erecting the temporary wooden structures necessary in putting in the concrete lining. At that time Drake and his carpenters had been removed to another portion of the work, which was several thousand feet long, and the plaintiff was told by Patrick O'Hagan, one of his employers, to take charge of the work which Drake had been doing. Plaintiff objected, saying that he knew nothing about that work. O'Hagan told him that one of Drake's men who was experienced in the work, and could do it, would be given him. This man, a negro, laborer named Russell, was accordingly transferred to his gang and remained with him until the accident occurred.

This work consisted of putting in wooden forms for the concrete lining of the tunnel, and was done in sections about 12 feet in length. The outer wall consisted of sheet piling composed of planks about 10 feet long, 3 inches thick, and 10 or 12 inches wide, sharpened at the bottom, and driven in to the ground close together against the perpendicular side of the excavation, edge to edge. These, when set, constituted the outside of the form. When this was done the concrete floor of the tunnel was poured between them and allowed to harden, and the wooden structure constituting the inner walls of the form was constructed inside them, and all was braced so as to withstand the pressure of the concrete to be poured between them and reinforced with steel bars, and which would, when hardened, become the lateral walls of the tunnel. The work was proceeding from south to north, and the west wall of the section under construction was being set at the time against the completed section south of it. This was done by setting and driving two of the piles at the north end. Between these and the north piles of the completed section, a timber four by four inches square was extended and nailed to the piling at each end about two feet from the top. The intervening planks or piles were then driven into the ground along the line of this stick, which was called a "line timber," because it served to line the sheet of piling along the outside of it.

In preparing the panel to receive this piling the line timber had been fastened at the ends with 10-penny nails "toed" in at the top; that is to say, driven through the corner of the timber so that me points entered the pile in front of it. This was its only fastening. This hau previously been done with 20-penny nails. Ordinarily it would stand practically against the perpendicular wall of the excavation, and in driving the piles with which it was to be filled the men would stand upon the top of the bank or upon the line timber, or a board resting upon the ground and the line timber, as they saw fit and the situation indicated, driving the piles with a wooden maul. They also passed to and fro on this timber in doing their work. At the time of the occurrence in question there had been a cave of the earth near the south end of the panel, the adjoining earth having fallen into the bottom of the excavation, and the plaintiff stood there leaning against this timber and observing the progress of the work. On taking this position he had put his knee against the timber and found that it seemed solid. While he was leaning upon it one of the workmen stepped on it. It gave way under his weight, the nails pulling out, and he was precipitated, with the timber, to the bottom of the ditch, receiving the injuries complained of. It turned out, upon examination, that the line timber had been toed to the piles with 10-penny nails and not otherwise fastened. Before proceeding with the work as directed by Mr. O'Hagan the plaintiff had told Russell to get some 20-penny nails for that purpose, and supposed it had been done. Russell had gone to the toolhouse where the stores for that part of the structure were kept, and asked for them, and was told by the storekeeper that they were out of that size, and was given the smaller nails, which he brought back and used in the manner indicated ed, without disclosing the fact to plaintiff.

The plaintiff offered evidence to the effect that after the injury the defendant Patrick O'Hagan, who superintended the work, stated to him that he was sorry for the occurrence, and that the supply of 20-penny nails had become exhausted; that it was only for a short duration, but at the time that Mr. Russell had asked for them they had given him 10-penny nails. This was excluded by the court on the objection of defendants that "Mr. O'Hagan's statement would not be binding upon any of the other defendants in the case, and for the further reason that the testimony shows, without substantial dispute, that the plaintiff himself was in charge of that work, and was the man to determine when he should go ahead with it, what nails he should use, and the testimony offered is wholly immaterial, and does not tend to prove negligence or any issue in the case."

He also offered to prove, by witnesses whose experience and competency was not questioned, that the customary and usual method employed by reasonably careful contractors, foremen, and workmen engaged in the same line of work was to secure a line timber to the upright to use, in addition to 20-penny nails, a cleat nailed to the upright beneath it. This evidence was also excluded by the court.

The defendant also offered to prove by a witness who had worked as carpenter for defendant on the same job and in the same work that about two months before that time Mr. O'Hagan, then superintending the worn, had instructed him not to use cleats for the support of the line timbers under similar circumstances because it was a needless waste of time and material. This was excluded by the court "for the reason that the plaintiff was in no way connected with it, and, the offer is for two months preceding the time the accident occurred."

At the close of plaintiff's evidence the defendants asked that the jury be instructed to find for them, and it thereupon gave an instruction in' the nature of a demurrer to...