Adams v. McCormick Harvesting Mach. Co.

• Decision Date: 27 March 1905
• Citation: 86 S.W. 484,110 Mo. App. 367
• Parties: ADAMS v. McCORMICK HARVESTING MACH. CO.
• Court: Missouri Court of Appeals

86 S.W. 484

110 Mo. App. 367

ADAMS v. McCORMICK HARVESTING MACH. CO.

Kansas City Court of Appeals. Missouri.

March 27, 1905.

MASTER AND SERVANT—INJURIES TO SERVANT —FELLOW SERVANTS — INCOMPETENCY— KNOWLEDGE —INSPECTION OF WORK—CONTRIBUTORY NEGLIGENCE—PLEADING.

1. The fact that plaintiff was aware of the incompetency of his fellow servant by whose negligence he was injured, and that he notified defendant thereof, did not preclude a recovery, unless the danger was so apparent that a reasonably prudent person would not have continued longer in defendant's service.

2. In an action for injuries to a servant by the alleged incompetency of a fellow servant, the fact that the danger from such incompetency was so apparent that a reasonably prudent person would have abandoned the service, and that plaintiff was therefore guilty of contributory negligence in not doing so, was an affirmative defense, which defendant was required to plead in order to rely thereon.

3. Where, in an action for injuries to a servant by the incompetency of a fellow servant, plaintiff had full knowledge of such incompetency and had previously complained thereof to defendant's agent, plaintiff was not entitled to presume that certain work previously done by such servant had been safely accomplished.

4. Where plaintiff's fellow servants, one of whom was known by plaintiff to be reckless and incompetent, had set up certain binder platforms in store, and plaintiff was injured by the fall of one of them, whether he was guilty of contributory negligence in approaching the platform, which he knew had been set up by such fellow servants, without looking to see whether they were securely placed, was for the jury.

Appeal from Circuit Court, Jackson County; Wm. B. Teasdale, Judge.

Action by James M. Adams against the McCormick Harvesting Machine Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Gilmore & Brown, for appellant. Lawrence & Lawrence and John Burgin, for respondent.

BROADDUS, P. J.

This case was before this court on a former appeal, and is reported in 95 Mo. App. 111, 68 S. W. 1053, to which we refer for a statement of the facts.

The case was reversed on the ground that the circuit court erred in compelling plaintiff to take a nonsuit, for the reason that under the pleadings and proof he was not entitled to recover. On trial anew, plaintiff recovered, and defendant appealed. The plaintiff seeks to recover damages for injuries received while he was in defendant's employ, and as the result of the negligence of an incompetent and careless fellow servant.

The defendant contends at the outset that plaintiff's petition does not state a cause of action, because it fails to set out that the incompetency of Williams, the fellow servant, was not so glaring and manifest as to threaten plaintiff with immediate injury, and therefore there was no excuse on his part for remaining in defendant's employ. The sufficiency of the petition was not discussed on the former appeal. The Indiana Supreme Court held that "a complaint by a servant against his master to recover for an injury caused by the negligence of a fellow servant, to be good on demurrer for want of facts, must not only allege that the master knew that the fellow servant was negligent in the discharge of his duties, but it must also show that plaintiff had no knowledge of that fact when he entered his master's service * * *;" and that, "when a servant remains in his master's service after he knows * * * of the negligent habits of a fellow servant, it is necessary, in a complaint by him against the master to recover for an injury caused by the negligence of a fellow servant, to show a reasonable excuse for remaining in the service after such knowledge." Lake Shore R. R. Co. v. Stupak, 108 Ind. 1, 8 N. E. 630. "Evidence tending to show that defective machinery was used under a promise by the master to remove the defect held inadmissible where such promise was not pleaded." Malm v. Thelin, 47 Neb. 686, 66 N. W. 650. "In an action by a servant against his master to recover damages for personal injury caused by the defective state of the machinery or premises or materials provided by the master for the purpose of the work, it is necessary for the plaintiff to allege and prove that the danger or defect was known to the defendant and not known to the plaintiff." Bogenschutz v. Smith, 84 Ky. 330, 1 S. W. 578. A similar principle is stated in International Ry. Co. v. Doyle, 49 Tex. 190. A different principle, however, obtains in this state. In Fisher v. Lead Co., 156 Mo. 485, 56 S. W. 1107, it is held that "it is sufficient if the petition alleges that the defect complained of was known to the employer, without also alleging that such defect was unknown to the servant." Notwithstanding the petition in this case alleges that plaintiff was a ware of the incompetency of his fellow servant, and that he notified defendant of the fact, that did not preclude him from recovery, unless the danger was so apparent that a reasonably prudent person would not have longer continued in the service of defendant. If, however, the danger was so imminent that a reasonably prudent person would have abandoned the service, he was guilty of contributory negligence, which was a matter of affirmative defense, to be pleaded as such. Williams v. Ry. Co., 109 Mo. 475, 18 S. W. 1098; Young v. Iron Co., 103 Mo. 324, 15 S. W. 771; Thorpe v. R. R. Co., 89 Mo. 650, 2 S. W. 3, 58 Am. Rep. 120. It seems to be a settled question in this state that such matters are affirmative defenses to be pleaded. The petition, we think, is sufficient.

Instruction No. 3 is objected to as misleading. It is as follows: "If the jury believe from the evidence that Adams did not assist in placing the platform which fell upon him, if you find it did fall on him, or was not present at the time Williams and Imes set it into place, he had a right to presume that said platform had been properly placed, and it was not his duty to take particular care to inspect said platform to see if it was in a safe position before approaching the same, and he was not guilty of contributory negligence merely by his failure to so inspect said platform." We will call particular attention to some of the evidence in regard to the platform. The platform in question was that part of a harvesting machine upon which the grain falls when cut by the sickle. We quote from the former opinion: "This platform is constructed of iron, is about five feet wide by seven feet long, a few inches in thickness, and weighs about 300 pounds. These platforms were stored in this manner: One was placed at a proper distance from the wall, with the sickle bar down, and allowed to lean against the wall, each succeeding one being placed with the bar...