Adair v. Kansas City Terminal Railway Company

• Decision Date: 10 April 1920
• Citation: 220 S.W. 920,282 Mo. 133
• Parties: HERSCHEL C. ADAIR, Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY; H. P. O'HAGAN et al., Partners, and O'HAGAN & LAKE, a Corporation
• Court: Missouri Supreme Court

220 S.W. 920

282 Mo. 133

HERSCHEL C. ADAIR, Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY; H. P. O'HAGAN et al., Partners, and O'HAGAN & LAKE, a Corporation

Supreme Court of Missouri, First Division

April 10, 1920

Appeal from Jackson Circuit Court. -- Hon. Thomas B. Buckner, Judge.

Affirmed in part; Reversed and remanded in part.

C. W Prince, E. A. Harris, J. N. Beery and J. E. Westfall for appellant.

(1) In considering a demurrer to the evidence or the giving of a peremptory instruction, the court should give consideration to all the evidence and all reasonable inferences to be drawn therefrom most favorable to the plaintiff. Frankel v Hudson, 271 Mo. 495; Trebbe v. American Steel Foundry, 185 S.W. 179; Meenach v. Crawford, 187 S.W. 879. (2) Orders had been given to use twenty-penny nails in fastening the line timber to the piling, which was the size of nail customarily used for this purpose. Instead of defendants providing the twenty-penny nails they furnished tenpenny nails. It was the duty of the defendants to provide proper material and suitable appliances for the purpose of securing safety for their servants, and failure therein entailed liability for any injuries that followed by reason of such failure or neglect. Stoddard v. Railroad, 65 Mo. 514; Craig v. Railroad, 54 Mo.App. 523; Gale v. Mill Co., 159 Mo.App. 639; Scheidler v. Iron Works, 172 Mo.App. 688. (3) Where a subordinate workman complains of the possible insufficiency of a method of construction, and is assured by the employer or employer's vice-principal that the method is sufficiently safe and such employer reiterates his order to proceed as theretofore, such employer is liable for injuries due to the insufficiency complained of. McGowan v. Railway, 61 Mo. 52; Rowland v. Mo. Pac., 20 Mo.App. 463; Combs v. Rountree Const. Co., 205 Mo. 367; Bloomfield v. Wurster Const. Co., 118 Mo.App. 254; Herdler v. Stove Co., 136 Mo. 3; Sullivan v Railway, 107 Mo. 66. (4) Even though the defect might have been discovered by the plaintiff by making an examination of the manner of fastening the line timber, yet, there is no evidence showing that the defect was glaring or so patent that a man of common prudence would not have used it, or that it was so dangerous as to threaten immediate injury, or that it was not reasonable to suppose that it might not be safely used by the exercise of skill and care; and in such circumstances, even if plaintiff knew of the defects complained of (which he did not), that did not necessarily preclude a recovery, but whether or not he was guilty of negligence in leaning against the line timber was a question of fact to be determined by the jury. Combs v. Rountree, 205 Mo. 367; Doyle v. Trust Co., 140 Mo. 1. (5) Where, however, there were furnished to the plaintiff and his co-employees materials with which to construct this scaffold, which were not proper for the purpose and which made the scaffold when constructed an unsafe and improper place for the doing of the work, then if the master employed a person to act in his place to furnish such materials, the negligence of such person so appointed to act for the master in the discharge of the duty which he owed to his employees was the negligence of the master, for which the master was responsible. Combs v. Rountree, 205 Mo 367; Swanson v. Elevator Co., 22 N.D. 563. (6) It is the positive duty of the master to provide a reasonably safe place to work although the place is shifting and temporary. Likewise, it is equally well settled that any agent or employee to whom any part of this duty is delegated, becomes the vice-principal, for whose negligence the master is liable. Corby v. Tel. Co., 231 Mo. 417; Jarrell v. Coal Co., 154 Mo.App. 552. (7) Under the evidence and the law the workman who furnished the ten-penny nails instead of the twenty-penny nails and the workman who used them in constructing the shoring was a vice-principal of the defendants in furnishing the materials and providing a place in which plaintiff was required to work. Russ v. Railway, 112 Mo. 53; Bowen v. Railway, 95 Mo. 278. (8) The plaintiff introduced in evidence the third paragraph of the answer of the defendant, Terminal Ry. Co., which tendered the defense of assumption of risk. Assumption of risk being a matter of contract, and not of conduct, it necessarily follows that by this defense the defendant railway company admitted, and in effect charged, the relation of master and servant to exist between defendant railway and plaintiff. A necessary implication in a pleading is the same as an allegation. Burt v. Nichols, 264 Mo. 1; Johnson v. United Railways, 227 Mo. 423; Fish v. Railway, 263 Mo. 106. A party must abide by the statements made in his own pleadings and is absolutely concluded by the statement therein contained. Weil v. Posten, 77 Mo. 284; Knoop v. Kelsey, 102 Mo. 291. (9) "It is the doctrine of the Missouri courts that the pleadings of the party are admissible in evidence, where they contain admission or statements against his interests." Meriwether v. Knapp & Co., 224 Mo. 617; Hendrick v. Ry. Co., 159 Mo.App. 190. (10) One of the defendants, Mr. Patrick O'Hagan, stated, "that he was sorry that the supply of twenty-penny nails had become exhausted, that it was only for a short duration, but at the time that Russell, a workman, had asked for them they gave him ten-penny nails." Plaintiff's offer to prove this statement was excluded on defendants' objection. A statement made by a party litigant, which is pertinent to the issues and against his interest is competent and admissible as against that defendant; and the fact that there are other defendants in the case does not effect its competency. Forrister v. Sullivan, 231 Mo. 345. (11) And where such a statement or admission is competent against a party defendant it is also admissible against his co-defendants, for whom he is vice principal, and this notwithstanding the fact that it was made after the occurrence complained of. Malecek v. Railway Co., 57 Mo. 1; McDermott v. Railway Co., 87 Mo. 285.

S. W. Moore, John H. Lathrop and J. R. Bell for respondent Kansas City Terminal Railway Company.

(1) It is contended that the plea of assumption of risk in the amended answer of the Kansas City Terminal Railway Company constitutes an admission that the appellant was an employee of the Kansas City Terminal Railway Company. It is submitted that this plea in the answer, in view of all the pleadings and evidence in the case, cannot be taken as an admission that the relation of master and servant existed between Herschel C. Adair and the Kansas City Terminal Railway Company. The allegation of assumption of risk does not say that appellant was an employee of the Terminal Company; it merely alleges that the alleged injuries arose out of the risks of the employment in which the plaintiff was engaged. Then follows a plea that the injury was caused by the negligence of fellow-servants and then follows a direct allegation to the effect that the plaintiff, at the time and place mentioned in his amended petition, was an employee of defendants O'Hagan & Lake and was not an employee in any manner whatsoever of the Terminal Company, and that O'Hagan and Lake were independent contractors. Certainly in view of these direct allegations it cannot be contended that there was an admission that the appellant was an employee of the Terminal Company. Under Sec. 1807, R. S. 1909, a defendant may set forth by answer as many defenses or counterclaims as he may have. Of course, if the evidence had established that Adair was an employee of the Terminal Company, then the company would have been in a position to take advantage of its plea of assumption of risk.

Hogsett & Boyle for respondents O'Hagan & Lake.

(1) There is no evidence that the method of fastening the lining timber adopted by O'Hagan & Lake, to-wit, by toe-nailing it with twenty-penny nails, at either end, was not reasonably safe.. (2) Plaintiff was a straw boss or foreman. It was his duty to see that this work was properly done. He leaned against this lining timber without ever knowing whether the laborer had finished nailing it or not -- in fact, without even knowing whether it was nailed at all or not. He was negligent as a matter of law. Kelly v. Railroad Co., 105 Mo.App. 365; (3) It was not the duty of the master to cause this section of sheeting to spring instantaneously into place, fully built with the timbers fastened and ready to be walked on. The master cannot be held liable in any event in this case because the section was in process of construction and it does not appear that the men had even finished nailing or fastening the lining timber. Bradley v. Railway Co., 138 Mo. 302; Armour v. Hahn, 111 U.S. 318; Bradley v. Tea & Coffee Co., 213 Mo. 320; Henson v. Armour, 113 Mo.App. 618; Kelly v. Railroad, 105 Mo.App. 365; Anderson v. Granite & Const Co., 178 S.W. 737. Even if Mr. O'Hagan himself had been building the section there could be no liability because the work was not finished. But plaintiff himself was the agent to whom had been delegated the duty of overseeing this work -- he was the only vice-principal present; it was his duty to see that the master's orders were carried out. Kelly v. Railroad, 105 Mo.App. 365. (4) The negro laborer who worked in plaintiff's gang, under plaintiff's direction, and whom plaintiff was directing at the very moment of plaintiff's injury, was of course not a vice-principal. Plaintiff himself was the only vice-principal present. Forbes v. Dunnavant, 234 Mo. 55; Russ v. Railway Co., 112 Mo. 53; Bowen v. Railway, 95 Mo. 278; Moore v. Railway, 85 Mo. 588; Burkard v. Rope Co., 217 Mo. 482. Even under the state of facts claimed by plaintiff's counsel to exist, the negro laborer was at most a...