Borden v. Falk Co.

• Decision Date: 05 January 1903
• Citation: 97 Mo. App. 566,71 S.W. 478
• Parties: BORDEN v. FALK CO.
• Court: Missouri Court of Appeals

71 S.W. 478

97 Mo. App. 566

BORDEN v. FALK CO.

Court of Appeals at Kansas City, Missouri.

January 5, 1903.

MASTER AND SERVANT—FELLOW SERVANTS— MULES—VICIOUS NATURE—COMMON KNOWLEDGE —NEGLIGENCE—INSTRUCTIONS.

1. Where an employé was injured through the negligence of the superintendent directing the work, the doctrine of fellow servants does not apply.

2. The mule is a domestic animal, whose treacherous and vicious nature is so well known that courts may take judicial notice of it; and the owner of such an animal cannot be heard to say that he did not know of its treacherous and unreliable character.

3. A superintendent, who had ordered an employé to place himself in a dangerous position under a wagon drawn by a span of mules, was guilty of the grossest negligence in ordering the teamster to leave the mules, without himself taking any further precaution to prevent their starting up than to place himself in front of them.

4. Though a defense of contributory negligence was defectively pleaded, where no objection was taken thereto before the trial, a general charge of negligence was a sufficient basis for the introduction of proof.

5. An instruction for plaintiff, covering the whole case, should be so framed as not to exclude from the consideration of the jury the points raised by defendant's evidence.

6. Where there was no evidence to support defendant's defenses of contributory negligence, assumption of risk, and negligence of fellow servant, it was not error for the court to omit to charge as to them.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Pete Borden against the Falk Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harkless, O'Grady & Crysler, for appellant. J. D. Brown and M. A. Fyke, for respondent.

SMITH, P. J.

This is an action to recover damages for personal injuries. It appears from the record before us that the defendant is a business corporation engaged in street railway construction, and that the plaintiff was a common laborer in its employ at the time he was injured. The defendant, in carrying on its business of street railway construction, was represented by a superintendent and foreman. It had in use a bending machine, which set upon four wheels, and had a tongue about four feet long, and which machine it desired to move. In order to do this, it was necessary to fasten the tongue by a chain to the axle of a wagon, so that when the wagon moved it would follow. One Thompson, a teamster in defendant's employ, was in charge of a wagon to which was attached a span of mules, which he backed over the tongue of the machine. The superintendent then ordered Thompson to go around and help hook the machine onto the wagon, saying that he would take care of the team. Said superintendent then ordered the plaintiff to leave his work on the railway track and to come and help move the machine, and when the latter got under the wagon he found that the tongue of the machine did not come under the coupling pole of the wagon, and Thompson thereupon took a crowbar and shoved the left forewheel around so that it did. While the plaintiff was under the wagon "hunkered" down on his left knee, working at the chain, and endeavoring to hook it, the team started, and one wheel of the machine, which latter weighed about 6,000 pounds, ran over his foot, severely injuring it. During the time the plaintiff and Thompson were engaged in hooking the machine onto the wagon the superintendent was standing in front of the team,—at what distance it does not appear, but it does appear that he did not have hold of it in any way. This brief outline of the facts disclosed by the evidence will, we think, suffice for a full understanding of the questions presently to be considered. The plaintiff had judgment, and the defendant appealed, and...