Allen v. Quercus Lumber Company

• Decision Date: 10 June 1913
• Citation: 157 S.W. 661,171 Mo.App. 492
• Parties: DAVID P. ALLEN, Respondent, v. QUERCUS LUMBER COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

157 S.W. 661

171 Mo.App. 492

DAVID P. ALLEN, Respondent, v. QUERCUS LUMBER COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Springfield

June 10, 1913

Appeal from Butler County Circuit Court.--Hon. J. C. Sheppard Judge.

Reversed and remanded.

Merritt U. Hayden and Ernest A. Green for appellant.

(1) The burden was upon the respondent to establish by a preponderance of all the evidence, three facts: First. That Foister was inexperienced, unskilful, habitually careless and incompetent to operate the derrick and engine with reasonable safety to respondent and others employed around same. Second. That appellant either knew of such incapacity, or by the exercise of ordinary care would have known of it. Third. That respondent's injury was the direct and proximate result of such incapacity of said Foister. A failure to prove any one of these three facts deprives respondent of the right to recover herein. Huffman v. Railroad, 78 Mo. 50; Kersey v. Railroad, 79 Mo. 362; Grube v Railroad, 98 Mo. 330; Adams v. Machine Co., 95 Mo.App. 111; Roblin v. Railroad, 119 Mo. 476; Dysart v. Railroad, 145 Mo. 83; Zumwalt v Railroad, 35 Mo.App. 661; Tucker v. Telephone Co., 132 Mo.App. 418, 112 S.W. 6; Snodgrass v. Steel Co., 173 Pa. St. 230; Kellogg v. Lumber Co., 125 Mich. 223; Gier v. Railroad, 108 Cal. 129; 1 Labatt on Master and Servant, secs. 181-188; Wharton on Negligence, secs. 238 and 240. (2) Incompetency of a servant on a given occasion may be proved by evidence of prior acts of unskilfulness, or carelessness, or of prior acts indicating incapacity, but the proof must be of such a character as to show habitual carelessness, habitual incapacity rather than occasional acts of negligence. A single act of negligence, prior to an accident, neither proves or tends to prove either inexperience, unskilfulness, habitual carelessness or incompetency. Dysart v. Railroad, 145 Mo. 83; Zumwalt v. Railroad, 35 Mo.App. 661; Tucker v. Telephone Co., 132 Mo.App. 418, 112 S.W. 6; Lee v. Bridge & Iron Works, 62 Mo. 568; Huffman v. Railroad, 78 Mo. 50; McKeever v. Mining Co., 10 S.D. 599, 74 N.W. 1053; Elevator Co. v. Neal, 65 Md. 438; Coppins v. Railroad, 122 N.Y. 563-4; Coal Co. v. Seniger, 179 Ill. 373-4; Snodgrass v. Steel Co., 173 Pa. St. 230; Kellogg v. Lumber Co., 125 Mich. 223; Baulec v. Railroad, 59 N.Y. 356. (3) Evidence of many prior acts of negligence on the part of the engineer is not sufficient to sustain the allegation of negligence of appellant without proof of knowledge by apellant, either actual or constructive, of such acts of negligence of the engineer. Tucker v. Telephone Co., 132 Mo.App. 418, 112 S.W. 6; Roblin v. Railroad, 119 Mo. 476; Dysart v. Railroad, 145 Mo. 83; Baulec v. Railroad, 59 N.Y. 356; Huffman v. Railroad, 78 Mo. 50; Zumwalt v. Railroad, 35 Mo.App. 661; Railroad v. Hetzer, 135 F. 272. (4) A witness possessing no knowledge either of the method of construction of this engine and derrick or of its mode of operation, who never operated one similar to it in construction and mode of operation, who never saw one operated, who never saw this particular engine and derrick, is not competent to testify, as an expert, with respect to how much experience is required to qualify one as a reasonably careful engineer. McAnany v. Henrici, 238 Mo. 103, 141 S.W. 636. (5) It is error for the trial court to give to the jury instructions that are inconsistent with, and contradictory of, each other for the reason that it is not possible to tell which the jury followed. Smith v. Railroad, 126 Mo.App. 120; Wallack v. Railroad, 123 Mo.App. 160; Gessner v. Railroad, 132 Mo.App. 584

David W. Hill for respondent.

(1) Respondent was entitled to recover when he proved only facts stated in his main instruction. (2) Appellant cannot now be heard to say that respondent's instruction was not supported by the facts, because the instructions offered by the defendant and given to the jury assume the same facts. Peters v. Gille Co., 133 Mo.App. 412; Reppetoe v. Railroad, 138 Mo.App. 402; Riggs v. Street Railway, 216 Mo. 304. (3) The respondent and apellant adopted the same theory and the appellant in the lower court certainly assumed the facts to exist upon which its instructions were based and it cannot now, in this court on appeal, try the case on any other theory than the one adopted by both parteis in the lower court. Drug Co. v. Bybee, 179 Mo. 369; Farrar v. Railroad, 162 Mo. 469. (4) The respondent had the right to presume that the engineer, Foister, would do his duty and not negligently let a heavy log fall upon him. Tetwiler v. Railroad, 242 Mo. 190; Weighman v. Railroad, 223 Mo. 699; Donohue v. Railroad, 91 Mo. 357. (5) In the trial court, the appellant voluntarily treated the issue of contributory negligence as one for the jury, and it is bound by the position assumed in the lower court. Dahmer v. Street Railway, 136 Mo. Ap. 449. (6) This court will disregard any errors not affecting the merits. Sec. 1850 and 2082, R. S. 1909; Honea v. Railroad, 151 S.W. 119. (7) Upon the hearing of the motion for a new trial, it was for the lower court to decide whether or not the verdict was against the weight of the evidence and the court's finding in favor of the plaintiff in that regard is conclusive in this court. Winfrey v. Lazarus, 148 Mo.App. 388; Lindsey v. Stephens, 229 Mo. 619.

OPINION

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 $ 2000, 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 sawmill 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 one hundred or one hundred and fifty 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 forty-five degrees with the mast or upright timber. An iron cable ran out along and over the upper end of this boom, which was thirty-five or forty 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 twenty-five 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 carload 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. Employees 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 respondent and another employee to move this log by means of the tongs and derrick. At this time the boom of the derrick was standing about due south of the upright or mast. The upper end of the boom was north and east of where the log lay. The tongs were carried over to the southwest and attached to the log. Respondent hooked the east tong to the east end of the log and another workman fastened the other hook to the west end. At this time plaintiff was the one to give the signals for Foister, the engineer, to start and operate the engine. It was customary for the one of the tong hookers doing...