Burns v. R.L. McDonald Mfg. Co.

• Decision Date: 21 May 1923
• Docket Number: No. 14675.,14675.
• Citation: 213 Mo. App. 640,252 S.W. 984
• Parties: BURNS v. McDONALD MFG. CO.
• Court: Missouri Court of Appeals

252 S.W. 984

213 Mo. App. 640

BURNS v. McDONALD MFG. CO.

No. 14675.

Kansas City Court of Appeals, Missouri.

May 21, 1923.

Rehearing Denied June 11, 1923.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Jesse Burns against the R. L. McDonald Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Mosman, Rogers & Buzard, of Kansas City, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

TRIMBLE, P. J.

While engaged in helping to erect a building for defendant, a heavy plank or joist fell upon and injured plaintiff's arm. This action for damages was accordingly brought, resulting in a judgment of $4,000 in plaintiff's favor, from which defendant has appealed.

The case was submitted to the jury upon the ground that the defendant retained in its employ one Zeigler, who was habitually careless, negligent, and reckless in performing the work he was called upon to do, after the defendant knew, or in the exercise of ordinary care should have known, of such incompetency, habitual carelessness, and recklessness, whereby and on account of which plaintiff was injured. The defense was a general denial, assumption of risk, and contributory negligence.

The building in process of being erected was 120 feet or more in length north and south and 30 or more feet in width. A row of posts, at regular intervals, went along the middle of the building the entire length thereof, on which steel I—beams were fastened, so as to form a continuous line of support throughout the length and in the middle of the building. It was to be a building one story in height, and, extending from either sidewalk to the central I—beam, joists were to be placed running east and west and about 12 inches apart. These joists were each 18 feet long, 14 inches wide, and 3 inches thick, and weighed in the neighborhood of 180 or 200 pounds. The joists on the east side of the median I—beam line had been set in place along the entire length of the building. This, however, had been done by a method different from that by which the joists on the west side of the building were, by direction of the foreman, attempted to be put in place.

The new or different method adopted for placing the joists on the west side consisted in having two men (one at each end) carry a joist into the building, one end of which would be handed to plaintiff, standing on a platform or scaffold about 4 feet high extending alongside the median I—beam line, and the other end to another employé standing on a similar platform running alongside of the side wall. These two employés would then in unison lift the joist above, their heads, the employé next to the wall placing his end of the joist edgewise on the wall at its proper place, and plaintiff delivering his end into the hands of Zeigler, who sat a-straddle of the median I—beam and reached down and took it from plaintiff's hands and set it edgewise in its proper place on the I—beam. As plaintiff had to lift the joist high above his head, he could not look up to see when Zeigler had obtained a secure hold thereon, so it was agreed that, when Zeigler had obtained such hold, he would notify plaintiff when the latter should let go of the joist by saying "All right," or "I got it," and thereupon plaintiff would immediately let go, so that Zeigler could at once elevate the joist into its proper place.

They had begun at the south end on the west side, putting the joists in place in this manner, and had put up about six or eight, and were out from the south end wall about 8 or 10 feet, when a joist was being handed up by plaintiff to Zeigler in the manner aforesaid. Plaintiff had raised the joist high above his head. Zeigler stooped over or leaned down, as though to take the' joist, and may have had his hand or hands upon it. But, whether he did or not, he gave the required signal by saying "All right," or "I have got it," whereupon plaintiff relaxed his hold, and immediately the heavy joist fell edgewise upon and across his arm, severely injuring it. Plaintiff, losing his equilibrium through the force of the blow, staggered, and then, to avoid falling, sprang out the open window space in the wall to the ground below, alighting upon his feet, or perhaps his feet and hands. Plaintiff offered evidence tending to show that a lump came upon his arm where the edge of the board struck it, which refused to heal, which finally developed pus in it, and which had to be lanced several times, and that as a final result thereof the bone became affected, the arm has become stiff, and he cannot raise it beyond a certain point, whereby he is greatly hampered in his work.

Defendant very strenuously urges that its demurrer, offered at the close of the entire case, should have been sustained. The basis of this contention appears to be that there is no evidence even tending to show (1) that Zeigler was habitually negligent or incompetent; nor (2) that the injury to plaintiff was caused by, or the result of, Zeigler's habitual negligence or incompetence; nor that such alleged incompetence or habitual negligence was known to defendant; nor (4) that Zeigler was retained in defendant's employ after actual or constructive knowledge of such alleged habitual negligence and incompetence; and (5) that the evidence shows plaintiff was guilty of contributory negligence as a matter of law.

In contending that there was no evidence to show Zeigler's habitual negligence, defendant manifestly limits the scope of the inquiry to Zeigler's conduct in lifting and. placing the other joists prior to this, and does not allow it to extend to any other work done by him about the premises. The argument apparently is that, as the joists on the east side and the preceding joists on the west side were put into place without any untoward happening or careless conduct in that regard on the part of Zeigler, and as there was nothing to show he was physically unfit to do that work, therefore there is nothing to show that he was habitually negligent or unfit, and even if he did carelessly allow this particular joist to fall, it was merely one instance thereof, which is insufficient to show habitual unfitness, but only negligence on this occasion, for which defendant is not liable; Zeigler being plaintiff's fellow servant.

We have no fault to find with the general legal principles involved in the abovestated position, but the trouble is with their application to the facts of this case. It is no doubt true that, in order to render a master liable on the ground defendant is herein sought to be held, the negligence of the servant "must be habitual, rather than occasional, or of such a character as to render it imprudent to retain him in service." First National. Bank V. Chandler, 144 Ala. 286, 308, 39 South. 822, 828 (113 Am. St. Rep. 39). The character of carelessness cannot be proved by a single act of negligence. Galveston, etc., R. Co. v. Davis, 92 Tex. 372, 48 S. W. 570, 571; Allen V. Quercus Lumber Co., 171 Mo. App. 492, 501, 157 S. W. 661. Of course, we are not speaking now of a case where an act may be of such a character as to per se show incompetency. McDermott v. Hannibal, etc., R. Co., 87 Mo. 285, 295. Furthermore, the master cannot be held liable for retaining a habitually careless servant, unless the injury is shown to be connected with or caused by the faulty trait in the servant. Tucker v. Missouri, etc., Telephone Co., 132 Mo. App. 418, 427, 112 S. W.. 6; Allen v. Quercus Lumber Co., 171 Mo. App. 492, 502, 157 S. W. 661. And knowledge, either actual or constructive, of such faulty trait or habit must be shown against the master; mere proof that the servant was incompetent and that the plaintiff was injured does not raise an inference of negligence against the master in that regard. Huffman v. Chicago, etc., R. Co., 78 Mo. 50, 54.

With reference to confining the inquiry as to Zeigler's habitual carelessness to his conduct in lifting the joists prior to the injury, It will be observed that, as hereinbefore stated, the joists on the east side had been placed in position by a different method, and only six or eight had been set up in the manner in use when plaintiff was hurt. In other words, the injury occurred very shortly after Zeigler, by reason of the method adopted pursuant to the foreman's order, began working in a place where carelessness on his part would be fraught with danger to plaintiff. Consequently, if plaintiff is to be limited to the way in which Zeigler received and lifted the joists prior to the injury, the opportunity of showing habitual negligence would be reduced to an exceedingly narrow compass indeed, if not to absolute zero. Manifestly, however, plaintiff cannot be so limited, for the characteristic of habitual carelessness is disclosed by the way a servant performs various duties involving a series of acts of similar character covering a period of time which reveal the particular trait of the man in question. Tucker v. Missouri, etc., Telephone Co., 132 Mo. App. 418, 427, 112 S. W. 6.

In this regard plaintiff Introduced the evidence of himself and other fellow workmen of Zeigler which tended to show the following facts: That they noticed a peculiarity in his actions, and a...