Allen v. Quercus Lumber Co.

• Decision Date: 05 May 1913
• Citation: 157 S.W. 661
• Parties: ALLEN v. QUERCUS LUMBER CO.
• Court: Missouri Court of Appeals

157 S.W. 661

ALLEN v. QUERCUS LUMBER CO.

Springfield Court of Appeals. Missouri.

May 5, 1913.

Rehearing Denied June 9, 1913.

1. MASTER AND SERVANT (§§ 173, 174, 176) — INJURY TO SERVANT — NEGLIGENCE OF FELLOW SERVANT — LIABILITY OF MASTER.

To render an employer liable for the misconduct of an employé, causing injury to a fellow employé, it must appear that the employé was habitually negligent or incompetent, that the injury was caused by the employé's habitual negligence or incompetency, that the employer knew, or by the exercise of reasonable care could have known, of the employé's habitual negligence or incompetency, and that the employer, after actual or constructive knowledge, negligently retained the employé, and the employé will not as a general rule be condemned as incompetent by reason of a single act of negligence.

2. MASTER AND SERVANT (§ 279) — INJURY TO SERVANT — INCOMPETENCY OF FELLOW SERVANT — EVIDENCE.

Testimony of witnesses that an employé operating an engine and derrick used in lifting logs was high-tempered and when angry was inclined to be reckless, but that when his temper was not aroused he was careful and did his work well, did not show that he was habitually negligent or incompetent, in the absence of evidence that he was angry at the time of an accident resulting in injury to a fellow employé.

3. EVIDENCE (§ 539) — MASTER AND SERVANT (§ 271) — INJURY TO SERVANT — INCOMPETENCY OF FELLOW SERVANT — ADMISSIBILITY — EXPERT.

Testimony on the question of whether an engineer operating an engine and derrick used to hoist logs had sufficient experience in running engines must be confined to the skill and experience reasonably necessary in running similar engines and machinery; and, though the expert witnesses need not show that they had operated the same kind of an engine and machinery, they must show that they had operated engines and appliances so similar that a person having knowledge of the one would necessarily have knowledge of the other.

4. MASTER AND SERVANT (§ 286) — INJURY TO SERVANT — NEGLIGENCE OF FELLOW SERVANT — EVIDENCE.

Where, in an action for injuries to an employé engaged in unloading logs from a car, the evidence showed that a log first struck the employé and afterwards dropped on him after he had fallen down, but there was no evidence that negligence caused the log to strike the employé in the first instance, but that the negligence, if any, was in permitting the log to drop on him after he had fallen down, an instruction submitting the issue of negligence causing the log to strike the employé in the first instance was erroneous, and the court should have charged that the employer was not negligent in that respect.

5. TRIAL (§ 296) — INSTRUCTIONS — ERRORS IN ONE INSTRUCTION CURED BY ANOTHER.

The error in an instruction in an action for injuries to an employé, arising from the fact that it allowed the jury to find that the employer was negligent in allowing a log to strike the employé in the first instance, while the evidence only showed negligence, if any, in permitting the log to drop on him after he had been struck by the log and fallen down, was not cured by an instruction directing the jury not to allow any damages resulting from the log striking the employé.

6. TRIAL (§ 243) — INSTRUCTIONS — CONFLICTING INSTRUCTIONS.

An instruction in an action for injuries to an employé, caused by a log first striking him and then falling on him after he had fallen down, which authorizes the jury to allow damages for any injuries caused by the log striking and falling on the employé, and an instruction directing the jury not to allow any damages resulting from the striking, are inconsistent so as to constitute reversible error; the evidence not showing that the negligence of the employer caused the log to strike the employé in the first instance.

7. APPEAL AND ERROR (§ 928) — QUESTIONS REVIEWABLE — INSTRUCTIONS — WAIVER.

Where the trial court gave an instruction for plaintiff submitting an issue not sustained by the evidence, the court on appeal would presume that defendant's requested instructions on the same point were asked because of the giving of the instruction for plaintiff, and defendant could complain of the instructions on appeal.

8. MASTER AND SERVANT (§ 247) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE.

Where in an action for injuries to an employé unloading logs from a car, caused by a log first striking him and then falling on him, after he had fallen down, the evidence did not show any negligence causing the log to strike and knock the employé down, but that the negligence, if any, was connected with letting the log fall on the employé after he was down, the

question of contributory negligence was not in the case, because the employer owed the employé the same duty to avoid injuring him whether his being knocked down was due partly or wholly to his own negligence or a pure accident.

9. PLEADING (§ 8) — CONCLUSIONS — NEGLIGENCE.

An employé suing for a personal injury must plead the facts constituting negligence, and the employer, relying on contributory negligence, must plead the facts showing contributory negligence.

10. APPEAL AND ERROR (§ 171) — QUESTIONS REVIEWABLE — THEORY OF CASE IN TRIAL COURT.

Where the parties try the case on the theory that the pleadings raise an issue, and they allow evidence on that issue without objection, the court on appeal will treat the pleadings as raising the issue.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by David P. Allen against the Quercus Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Merritt U. Hayden, of St. Louis, and Ernest A. Green, of Jefferson City, for appellant. David W. Hill, of Poplar Bluff, for respondent.

STURGIS, J.

The personal injuries sued for by plaintiff are alleged to have been caused by the inexperience, unskillfulness, habitual carelessness, and incompetency of an engineer employed by defendant in operating an engine and derrick used in lifting logs from one place to another in its log yards; and that by reason thereof a log, which was being so lifted in unloading a car of logs, was negligently caused or allowed to strike plaintiff, knocking him down, and then let fall on him and dragged across his body, permanently injuring him. To avoid the effect of the engineer and plaintiff being fellow servants, the plaintiff also alleged that the inexperience, incompetency, and habitual carelessness of the engineer were well known to the defendant, or by the exercise of ordinary care could and would have been known to it. The defendant answered with a general denial, a general allegation of contributory negligence, and that when the plaintiff was employed by the defendant he represented and warranted that he possessed the requisite skill to perform the duties of his occupation, and that he assumed whatever risks were incident to his employment. The trial resulted in a judgment in favor of the plaintiff for the sum of $2,000, and an appeal by the defendant.

The situation of the various appliances being used at the time the accident occurred, and the surroundings and the circumstances of the accident as disclosed by the testimony, are fairly stated by the appellant substantially as follows: On the west side of the saw mill there was a lumber yard in which the manufactured lumber was piled, and on the east side of the mill was the log yard where the logs were gathered and piled preparatory to being hauled up into the mill and sawed. A railroad track extended along the south side of the log yard. This track ran practically east and west. It was laid on a slant; the south side of the roadbed being higher than the north side. The logs were brought to the log yard on flat cars which ran on this track. Usually these logs were fastened on the cars by means of what are called toggle chains, being large chains wrapped around the load and underneath the platform of the car. At a point in the log yard, about 100 or 150 feet north of this track, there was a derrick used for lifting and moving the logs from place to place. This derrick consisted of an upright piece of timber or mast and another piece of timber called the boom; the latter so placed as to form an angle of about 45 degrees with the mast or upright timber. An iron cable ran out along and over the upper end of this boom, which was 35 or 40 feet above the ground, and then extended down from the boom to a block. Below this block were two iron hooks or tongs which would be spread apart and each hooked into either end of a log. The cable was five-eighths of an inch in diameter. This derrick was operated by an engine which was in a little house about 25 feet north of the base of the derrick. The proper place for the engineer who operated this engine was in this engine house. The derrick was used to lift logs off of the cars, and to pick them up and swing them around to any desired place in the log yard.

On the morning in question a car load of logs was hauled in on the track and stopped at a point just south of the southwest corner of the log yard, and southwest of the derrick. Employés of the appellant were engaged in rolling the logs off this car. Just a moment before the respondent was injured, several logs had been rolled off the car and had dropped down on the bed of the track right beside the car and on the north side thereof, one of them nearly under the wheels, so that it became necessary to move this log before any more were rolled off the car. It was the duty of respon...