Adams v. McCormick Harvesting Machine Company

• Citation: 86 S.W. 484,110 Mo.App. 367
• Parties: JAMES M. ADAMS, Respondent, v. McCORMICK HARVESTING MACHINE COMPANY, Appellant
• Decision Date: 27 March 1905
• Court: Kansas Court of Appeals

86 S.W. 484

110 Mo.App. 367

JAMES M. ADAMS, Respondent, v. McCORMICK HARVESTING MACHINE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 27, 1905

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

REVERSED AND REMANDED.

Case reversed and remanded.

Gilmore & Brown for appellant.

(1) Under the pleadings and the evidence plaintiff is not entitled to recover against defendant. Carter v. Baldwin ___ Mo.App. 59, 81 S.W. 204; Browning v Kasten, 107 Mo.App. 59, 80 S.W. 354; Beymer v Packing Co., 106 Mo.App. 726, 80 S.W. 685; Hester v Packing Co., 95 Mo.App. 16; Price v. Railroad, 77 Mo. 508; Epperson v. Tel. Co., 155 Mo. 346; Steinhauser v. Spraul, 127 Mo. 541; Fulger v. Boethe, 117 Mo. 475; Condon v. Railroad, 78 Mo. 567; Watson v. Coal Co., 52 Mo.App. 366; Marshall v. Press Co., 69 Mo.App. 256; McDermott v. Railroad, 87 Mo. 285; Coontz v. Railroad, 115 Mo. 669; Warmington v. Railroad, 46 Mo.App. 159; Dale v. Railroad, 63 Mo. 455; Waldhier v. Railroad, 87 Mo. 37; Delvin v. Railroad, 87 Mo. 545; Sullivan v. Railroad, 107 Mo. 66; Smith v. Railroad, 69 Mo. 32; Aldridge v. Railroad, 71 Mo. 164; Donahoe v. Kansas City, 136 Mo. 657. (2) The opinion in the former appeal that plaintiff was entitled to go to the jury is not res adjudicata upon this appeal. Rutledge v. Railroad, 123 Mo. 121; Hamilton v. Marks, 63 Mo. 167; Bird v. Sellers, 122 Mo. 23; Bealey v. Smith, 158 Mo. 515; Mfg. Co. v. Troll, 77 Mo.App. 339; Leeser v. Boekhoff, 38 Mo.App. 445; Baker v. Railroad, 147 Mo. 140. (3) Plaintiff's petition does not state a cause of action and for that reason defendant's objection to the instruction of any testimony should have been sustained. Railroad v. Stupak, 108 Ind. 1; Malm v. Thelin, 47 Neb. 686; Coal Co. v. Norman, 49 Ohio St. 598; Railroad v. Doyle, 49 Texas 190; Stephenson v. Duncan, 73 Wis. 404; Bogenschutz v. Smith, 84 Ky. 330; 13 Ency. Pl. and Pr., 904, 906. (4) The question of the sufficiency of the petition is rightfully before this court. Lampert v. Gas Light Co., 14 Mo.App. 376; Railroad v. Swan, 120 Mo. 30. (5) The court committed reversible error in giving an instruction on behalf of plaintiff to the effect that plaintiff had a right to presume that Williams did his work properly. Adams v. Machine Co., 95 Mo.App. 111; Moberly v. Railroad, 98 Mo. 183; Lynch v. Railroad, 120 Mo. 420; Weller v. Railroad, 120 Mo. 635; Payne v. Railroad, 129 Mo. 405. (6) The court should have instructed the jury at defendant's request that if plaintiff knew the danger of working with Williams he assumed the risk of such danger by continuing in the employment. Flynn v. Bridge Co., 42 Mo.App. 529; Marshall v. Press Co., 69 Mo.App. 256; Watson v. Coal Co., 52 Mo.App. 366; Doyle v. Trust Co., 140 Mo. 1.

Lawrence & Lawrence and John Burgin for respondent.

(1) Under points I and II, appellant's brief, appellant again for the second time in this court contends that the trial court should have sustained the demurrer to the evidence "because (appellant says) plaintiff under all the evidence is not entitled to recover judgment." The same evidence to all intents and purposes in both bills of exceptions before this court is found and the same law governs the same. Adams v. Machine Co., 95 Mo.App. 116; Conroy v. Iron Works, 62 Mo. 35. (2) But the company now undertakes to contend in this court in the face of its contention heretofore that Williams was utterly unfit and glaringly so to everybody, of course to the company as well as to Adams and Adams ought not to recover. We submit that the trial court properly left these questions to the jury. Gayle v. Car Co., 177 Mo. 455. (3) Again under the law it certainly was not incumbent on Adams to stop and look before approaching this platform, or to stop, look and see that it was in a proper position and not liable to fall, and defendant's own evidence is to the effect that at all times the warehouse room was very poorly lighted and under such circumstances a very minute and critical examination would have been necessary to have revealed the fact. The law upon this point is declared in 95 Mo.App. 120.

OPINION

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 it 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." [Railroad 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 Railroad v. Doyle, 49 Tex. 190.

A different principle, however, obtains in this State. In Fisher v. Lead Co., 156 Mo. 479, 56 S.W. 1107, it is held: "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 aware 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. Railroad, 109 Mo. 475, 18 S.W. 1098; Young v. Iron Co., 103 Mo. 324, 15 S.W. 771; Thorpe v. Railroad, 89 Mo. 650, 2 S.W. 3.] 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 numbered three 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 down and allowed to lean against the one preceding it. When placed in this position the back part of the platform was about six inches thicker at the top than the front of it (now the bottom), and for that reason it became necessary to place each sickle bar about five or six inches from the preceding one in order to obtain the proper inclination to hold the platforms securely in place. It required the services of but two men to so store the platforms, but when others were to be placed on those so standing, it required the efforts of three men to do the work. Just before the happening of the injury on which this action is based, the plaintiff here, together with Williams and Imes, had been engaged in storing the platforms, the two latter passing them up to plaintiff who had been placing them on top of the row; and finally, when as many had been so placed as the plaintiff thought proper, he went downstairs,...