Cody v. Lusk
| Decision Date | 12 December 1914 |
| Parties | JOSEPH CODY, Respondent, v. JAMES W. LUSK, W. C. NIXON, and W. B. BIDDLE, Receivers of the ST. LOUIS and SAN FRANCISCO RAILROAD COMPANY, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Davision Number One.--Hon Joseph D. Perkins, Judge.
Cause reversed and remanded.
Mann Todd & Mann and W. F. Evans for appellant.
(1) The demurrer requested by defendants should have been given because plaintiff did not prove any negligence of defendants entitling him to have his case submitted to the jury. (2) The rule of res ipsa loquitur does not apply to an action by a servant against the master, and there is no showing by plaintiff of anything except that while he was at work the extension came off and scaffold fell. Hamilton v Railroad, 123 Mo.App. 619; Haynie v. Packing Co., 126 Mo.App. 88; Klebe v. Distilling Co., 207 Mo. 480; Howard v. Railroad, 173 Mo. 524-531; Oglesby v. Railroad, 177 Mo. 272. (3) There was no evidence either that defendants had any actual knowledge of any defective condition of the extension, nor was there anything to show that such a defective condition had existed for such a length of time that constructive knowledge could have been imputed to defendants. To make out a case plaintiff must show one or the other of these facts. Wilks v. Railroad, 159 Mo.App. 722; Wojtylak v. Coal Co., 188 Mo. 281; Rowden v. Daniel, 151 Mo.App. 15. (4) There was no evidence to entitle plaintiff to have the case submitted to the jury on the allegation that the method adopted by defendants in doing the work was not a reasonably safe method. Letanovsky v. Shoe Co., 157 Mo.App. 120; Bradley v. Railroad, 138 Mo. 302; Mathis v. Stock Yards Co., 185 Mo. 446; Blundell v. Mfg. Co., 189 Mo. 558; Glenn v. Railroad, 167 Mo.App. 117; Saxton v. Railroad, 98 Mo.App. 501; Strottman v. Railroad, 211 Mo. 270. (5) Plaintiff was guilty of countributory negligence in staying upon the scaffold while it was being moved, instead of getting off on the ground. Moore v. Railroad, 146 Mo. 582; Hurst v. Railroad, 163 Mo. 309; Smith v. Box Co., 193 Mo. 715.
Fielding P. Sizer for respondent.
(1) Respondent is not relying upon the doctrine of res ipsa loquitur in order to recover in this case, but, on the other hand, we insist that the doctrine does apply as between master and servant, and that if it were true (as alleged by appellants) that the evidence only disclosed the mere facts of the happening of the accident, that even then this case could easily be classed as coming within that class of cases between master and servant, when proof of the occurrence itself shows negligence. Hamilton v. Railroad, 123 Mo.App. 623; Folk v. Schaeffer, 186 Pa. 253; Blanton v. Dold, 109 Mo. 74-75; Sackewitz v. Biscuit Co., 78 Mo.App. 151; Johnson v. Railroad Co., 104 Mo.App. 592. (2) The duty to furnish horses and extensions reasonably safe is a prime duty and cannot be delegated to another servant so as to escape liability and that when this is done it is still a prime duty to keep them in repair and a prime duty to properly inspect. Combs v. Constructoin Co., 205 Mo. 367; Ogan v. Railroad, 142 Mo.App. 251-2-3; 1 Labatt on Master and Servant, sec. 159; Gutridge v. Railroad, 105 Mo. 528-526; Tatem v. Railroad, 96 Mo.App. 454; Young v. Railroad, 133 Mo.App. 159-160; Bible v. Frisco, 169 Mo.App. 530; Covey v. Railroad, 86 Mo. 635, 641-642; Denker v. Milling Co., 135 Mo.App. 340, 343-44. (3) Whether there was any direct testimony or not as to the defendant's knowledge of any "defects or insufficiencies" in the extensions or horses, yet as it is the master's positive and continuing duty to inspect, and as we have proved by the assistant foreman himself, who was immediately over plaintiff, that he could not remember of ever having inspected these horses or extensions, certainly was a showing of negligence and was a sufficient basis for the jury to infer that had he used ordinary care, could have discovered such defects or insufficiencies in time to have avoided the injury to plaintiff. Covey v. Railroad, 86 Mo. 641-642. (4) Though the appliances and means might be defective, yet if the servant believes, by the exercise of ordinary care, he could safely use them, then he is not guilty of contributory negligence as a matter of law, unless they are glaringly defective. Bible v. Frisco, 169 Mo.App. 531; Gibson v. Bridge Co., 112 Mo.App. 598; Morgan v. Mining Co., 160 Mo.App. 99. (5) The defect was to some extent a latent one, and therefore it was the positive duty of the master to inspect for such defects, which must be continually performed. Organ v. Railroad, 142 Mo.App. 251-252-253; 1 Labatt on Master and Servant, sec. 159; Gutridge v. Railroad, 105 Mo. 528-529; Baker v. Railroad, 95 Pa. 211; Tatem v. Railroad, 95 Mo.App. 454; Younge v. Fisco, 133 Mo.App. 159-160; Combs v. Const. Co., 205 Mo. 367. (6) The jury found squarely against the defendant's contention that plaintiff was guilty of contributory negligence in remaining on the scaffold while it was being moved. Johnson v. Frisco, 164 Mo.App. 623; Johnson v. Frisco, 160 Mo.App. 69.
Plaintiff recovered a judgment for personal injuries received by him while in the employ of defendants, as receivers of the St. Louis and San Francisco Railroad Company, in the capacity of a boiler maker working at defendants' shops in Springfield, Missouri. His injuries resulted from a fall from the scaffold on which he was working at drilling flexible sleeves from the boiler sheet of a locomotive, using for that purpose a drill operated by electric power. The locomotive boiler on which he was working had been stripped from the trucks and other machinery and set up on end on the floor in a perpendicular manner, the top being between eleven and twelve feet high. Part of the work had to be done near the top and in doing this plaintiff used a scaffold made of two "wooden horses" with boards sixteen to twenty feet long extending horizontally from one to the other, forming a platform on which he stood at his work. These horses were about ten feet high, each formed of two ladders, similar to an ordinary carpenter's ladder, hinged together at the top and spreading at the bottom, with an iron rod near the bottom extending from one to the other so as to keep them from spreading further apart, making a horse on the principle of a stepladder which would stand without leaning against anything. The platform was made of two boards about a foot wide resting on a crosspiece of each ladder or horse and could be made higher or lower by putting these boards on higher or lower crosspieces.
The motor used weighed about one hundred and fifty pounds and was suspended, raised and lowered by means of a chain attached to it and passing over an iron bar made of two inch gas pipe extending from the top of one horse to the top of the other, and, as these horses were not built high enough, an extension to each was made of an upright board, one inch thick and five inches wide and three to four feet long, nailed on each horse with a "V" shaped notch sawed in the top of each extension and the pipe laid in these notches. This horizontal bar supporting the motor was therefore about thirteen or fourteen feet from the floor and the chain passing over it held the motor suspended at one end and a balance weight at the other. The cause of plaintiff's fall and resultant injury was that it was necessary in drilling to have the motor at right angles with the hole being drilled, and to do this to move from time to time by sliding along the floor one of the horses a distance of from two to five or six inches. The plaintiff had a helper in doing his work and, while the helper was moving one of these horses for the purpose just mentioned, the extension thereon gave way letting down the end of the rod supporting the motor, which in turn slided down against the horse, tipping it over and the whole thing collapsed, throwing plaintiff to the floor, one of the boards falling on him and breaking his leg.
The petition, after stating that while plaintiff was working with the boiler placed in an upright position the scaffold fell by reason of the extension giving way, alleges defendants' negligence as follows: "Plaintiff states that his injuries as aforesaid were due to the negligence of the defendants in failing to exercise ordinary care to furnish plaintiff with a reasonably safe place to work, and in failing to exercise ordinary care to furnish plaintiff with reasonably safe horses and extensions, and in furnishing plaintiff with old and defective and insecure horses and extensions, improperly and insecurely fastened thereto, or extensions too weak and insecure to support the weight of the motor and balance weight, when the defendants knew, or by the exercise of ordinary care could have known of the defective and insecure or too weak condition of the horses or extensions, and in adopting the method of doing said work as above set forth, which was not a reasonably safe method." The answer is a general denial, coupled with a plea of contributory negligence that plaintiff himself selected the horse with the defective and insecure extension from a number of similar ones and that plaintiff voluntarily remained on this scaffold while the same was being moved and adjusted while he could and should have descended to the floor.
The errors complained of are the refusal to direct a verdict for defendants and the giving and refusal of instructions. Of these in their order.
The defendants insist that the doctrine of res ipsa loquitur does not apply to an action by a servant against the master, and that nothing showing...
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