Adams v. McCormick Harvesting Machine Company
| Citation | 68 S.W. 1053,95 Mo.App. 111 |
| Parties | JAMES M. ADAMS, Appellant, v. McCORMICK HARVESTING MACHINE COMPANY, Respondent |
| Decision Date | 02 June 1902 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
John Burgin and Lawrence & Lawrence for appellant.
(1) In passing upon a demurrer to evidence, or a request for a peremptory instruction in favor of the defendant, the court is required to make every inference of facts in favor of the plaintiff which a jury might have made in his favor. The court can make no inference of fact in favor of the defendant nor can the court question the truth of any of plaintiff's evidence. A demurrer admits the truth of everything which plaintiff's testimony conduces to prove though in a small degree. Brink v. Railway, 17 Mo.App. 194; Herriman v. Railway, 27 Mo.App. 442; Buesching v. Gas Co., 73 Mo. 231; Monahan v Coal Co., 58 Mo.App. 72. (2) Master and servant do not stand upon equal footing. The master issues orders and the servant's province is obedience. Shortel v. St Joe, 104 Mo. 119; Stephens v. Railroad, 96 Mo. 207; Huhn v. Railroad, 92 Mo. 441; Hughes v. Fagin, 46 Mo.App. 40. (3) A reckless disposition renders a co-servant incompetent and unfit. Incompetency exists not alone in physical and mental attributes but also in disposition. Malay v. Electric Light Co., 58 N.Y.S. 659; Consolidated Coal Co. v. Seniger, 79 Ill.App. 456. (4) Plaintiff's knowledge of Williams' incompetency does not debar his right of recovery. Mahaney v. Railroad, 108 Mo. 197.
Gilmore & Brown for respondent.
(1) Defendant was guilty of contributory negligence in that he voluntarily assumed a dangerous position when he knew, or by the exercise of ordinary care could have known, that the platform was liable to fall and injure him. Bolton v. Railroad, 83 Ga. 659. (2) Plaintiff was guilty of such neglect of duty as constitutes a bar to his recovery in that he did not supervise the work of storing the platform in question. Evans v. Railroad, 62 Mo. 49; Roblin v. Railroad, 119 Mo. 476. (3) Plaintiff assumed the risk of injury from the negligence of Williams by continuing to work with him for four or five years after he knew of the danger of so doing. Epperson v. Cable Co., 155 Mo. 346; Halloran v. Foundry Co., 133 Mo. 470; Steinhauser v. Spraul, 127 Mo. 541; Marshall v. Hay Press Co., 69 Mo.App. 256; Coontz v. Railroad, 115 Mo. 669; McMullen v. Railroad, 60 Mo.App. 239; Condon v. Railroad, 78 Mo. 567; McDermott v. Railroad, 87 Mo. 285; Watson v. Coal Co., 52 Mo.App. 366; Warmington v. Railroad, 46 Mo.App. 159; Limberg v. Glenwood L. Co., 60 P. 176. (4) The evidence shows that the injury was occasioned by the negligence of Imes rather than of Williams. There can therefore be no recovery. Searles v. Railroad, 101 N.Y. 661; Breen v. Cooperage Co., 50 Mo.App. 215.
--Action to recover damages for personal injuries. The defendant maintains a warehouse in Kansas City, wherein is stored its harvester and binder machines. For several years preceding the date of the injury complained of, the plaintiff had been employed by the defendant in and about its warehouse; and on that day he and two others, Williams and Imes, were engaged in transferring a carload of harvesters and binders into the second story of the defendant's warehouse, the machines having been taken apart so that they could be conveniently moved and stored away. When so separated said machines were divided into ten pieces or parts, one of which parts being the "platform" upon which the grain falls when cut by the sickle. This platform is constructed of iron, is about five feet wide by seven 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 sickle-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 maintain 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 the top of 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 herein, 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 leaving Williams and Imes to finish standing up a few that remained. After they had done this and started away from the platforms, Imes noticed that they had been placed with the sickle-bars too close together, so that the last one at the end of the row was standing in a perpendicular position instead of being properly inclined toward that back of it. Imes thereupon called Williams's attention to its position, asking him if it would not fall, to which Williams replied that it was just as he wanted it--to leave it alone. Thereupon they went below, where plaintiff awaited them, and loaded a truck with grain wheels which plaintiff and Imes took to the second floor on the elevator. Plaintiff pushed the truck from the elevator over to the row of frames, just beyond the platforms, and then ran the truck up to the side of the frames which brought it a little north of the platforms. He then stepped to the side of the truck placing himself directly in front of the platforms. He then stooped over to pick up a grain wheel when the platform, which Williams and Imes had placed in position while plaintiff was waiting for them below, fell, striking plaintiff and injuring him.
It was plaintiff's duty to assist in and supervise the work required to be done in the warehouse and to see that the goods were properly stored and that the men at work there did a full day's work, but he was not authorized to employ or discharge them. Williams had been regularly employed by the defendant in its repair department, but when not needed there he was required to assist plaintiff in doing work in the warehouse. The former was not much more than a boy, he being only some eighteen or nineteen years old and not possessed of the strength of the average man. Besides this, he was shown by the evidence to be careless, incompetent and not strong enough to do the warehouse work. The plaintiff, more than two years before the happening of the injury, had on several occasions complained to his superiors in defendant's employment that Williams was too inexperienced, weak and careless to perform warehouse work, and that he (plaintiff) did not think him a safe man to work with in the warehouse, and that he was afraid of him. It does not appear that his superiors ever made plaintiff any promise or gave him any assurance that they would discontinue Williams's employment or that they would furnish a more competent man to take his place in doing the warehouse work. There was some evidence which tended to show that Williams had the reputation, amongst those acquainted with him, of being a careless, unsafe and dangerous man to work with.
There was a trial to a jury and at the conclusion of the plaintiff's evidence the court gave an instruction telling it that under the pleadings and evidence the plaintiff was not entitled to recover. Thereupon the plaintiff took a non-suit and after an unsuccessful motion to set the same aside he took his appeal here.
The demurrer, it appears, was sustained upon these grounds:
(1) That the plaintiff assumed the risk of injury from the incompetency, unfitness and carelessness of Williams by continuing to work with him after acquiring full knowledge of the danger to be incurred by doing so; and (2) that he was guilty of contributory negligence in taking a position in front of the platform where he knew, or by the exercise of ordinary care could have known, it was likely to fall, and in leaving Williams and Imes to place the remainder of the platforms without seeing, as was his duty, that it was properly done.
It is the well-settled law of this State that an employer is not responsible for injuries happening to his employee from the usual and ordinary risks incident to the employment in which the latter is engaged, for in all such cases the contract is presumed to be made with reference to such risks. Devitt v. Railroad, 50 Mo. 302; Doyle v. Trust Co., 140 Mo. 1, 41 S.W. 255.
And it is equally well settled that where the instrumentality with which the employee is required to perform the work is so glaringly and palpably dangerous that a man of common prudence would not use it, the employer can not be held responsible for the damages resulting therefrom. But where the employee incurs the risk of the instrumentality which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonable to suppose or believe that it may be safely used by the exercise of care, a different rule prevails. Conroy v. Iron Works, 62 Mo. 35.
And so it has been many times ruled that mere knowledge that an instrumentality is defective, and that risk is to be incurred in its use, is not, as a matter of law, sufficient to defeat the action by the employee if the danger is not such as to threaten injury, or if it be reasonable to suppose that it might be safely used by the exercise of care. Stoddard v. Railway,...
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