Combs v. Rountree Construction Co.
| Citation | 104 S.W. 77,205 Mo. 367 |
| Parties | COMBS v. ROUNTREE CONSTRUCTION COMPANY, Appellant |
| Decision Date | 01 July 1907 |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court. -- Hon. H. W. Johnson, Judge.
Affirmed.
Wise & McNulty and Seddon & Holland for appellant.
(1) The court erred in refusing to give the peremptory instruction asked by defendant at the close of all the evidence. Said instruction should have been given because, under the evidence, the act of negligence complained of by plaintiff was not the act of defendant but the act of a fellow-servant. Forbes v. Dunnavant, 95 S.W. 934; Bowen v Railroad, 95 Mo. 277; Herbert v. Wiggins Ferry Co., 107 Mo.App. 287; Ross v. Walker, 139 Pa St. 42; Armour v. Hahn, 111 U.S. 313; Richards v. Hayes, 45 N.Y.S. 234; Jones v. Packet Co., 43 Mo.App. 203; Kennedy v. Spring, 160 Mass. 203; Oelschiegel v. Railroad, 73 Minn. 327; Ferguson v. Galt, 27 Ont. App. 489; Colton v. Richards, 123 Mass. 484; Kelly v. Norcross, 121 Mass. 508; Beesley v. Wheeler & Co., 103 Mich. 196 (27 L. R. A 266); Howard v. Hood, 155 Mass. 391; Dewey v. Parke, Davis & Co., 76 Mich. 631; Adasken v. Gilbert, 165 Mass. 443; Fraser v. Lumber Co., 45 Minn. 443; Peschel v. Railroad, 62 Wis. 338; McGinnity v. Athol Reservoir Co., 155 Mass. 183; O'Connor v. Rich, 164 Mass. 560; Johnson v. Boston Tow Boat Co., 135 Mass. 209; Miller v. Railroad, 175 Mass. 363; Allen v. Iron Co., 160 Mass. 557; Hoar v. Merrill, 62 Mass. 386; Cregan v. Marston, 120 N.Y. 568; Pfeiffer v. Dialogue, 8 Am. Neg. Rep. 90; Hayes v. Railroad, 17 Am. Neg. Rep. 542; Callahan v. Trustees, 180 Mass. 183. (2) The court erred in giving instruction A at the instance of plaintiff: (a) Because said instruction improperly states the law in reference to fellow-servants. See authorities cited under point 1. (b) Because there was no evidence upon which to base said instruction. Stone v. Hunt, 114 Mo. 66; Evans v. Interstate Co., 106 Mo. 594; Wilkerson v. Eilers, 114 Mo. 245; Yarnell v. Railroad, 113 Mo. 570; Woods v. Campbell, 110 Mo. 572. (3) The court erred in giving instruction B at the instance of plaintiff, because there was no evidence upon which to predicate same. See authorities cited under point 2b. (4) The court erred in overruling defendant's objection to certain questions asked plaintiff as an exexpert, and also in refusing to strike out the answers of said witness upon motion of defendant. Minnier v. Railroad, 167 Mo. 99; Chrismer v. Railroad, 92 S.W. 378.
A. R. Taylor for respondent.
(1) Appellant's first contention is that its demurrer to the evidence should have been sustained because the acts of negligence complained of were not the acts of appellant but of fellow-servants. We meet this contention with the distinct claim that the negligence complained as causing the injury was the negligence of appellant's foreman; both the negligence in providing the brace with defective cleats to the respondent to work with and ordering him to get on the cleats whilst doing the work. We claim that the evidence for the respondent clearly shows that the negligence causing the injury was the negligence of the foreman; and, if so, the controversy ends on this point. If Christofell was the foreman for appellant in charge of this work, with authority from appellant to control the work and manner of doing the same, and to provide the means and appliances for doing the work, and authority to command and control the servants under him, including the respondent, as to the work they should do and the manner of doing, then he was the alter ego or vice-principal of appellant in these matters, and appellant was and is responsible for the manner in which these duties were performed. The rule is that it is the duty inherent in the master that he shall exercise ordinary or reasonable care in providing means and appliances reasonably safe and suitable for the servant to work with in the discharge of the duties of his employment; also that he will, in the conduct of the business, use such care in commanding and controlling the work of the servant to the end that he shall not be exposed to hazard not ordinarily incident to the service. These well-settled duties of the master he must perform, either in person or by his agent or vice-principal and he remains liable for their performance and can not escape responsibility for their non-performance, by delegating the performance of these duties to another, whether foreman, superintendent, boss, or another servant. Porter v. Railroad, 71 Mo. 78; Moore v. Railroad, 85 Mo. 594; Covey v. Railroad, 86 Mo. 643; Hoke v. Railroad, 88 Mo. 360; Bowen v. Railroad, 95 Mo. 278; Dayharsh v. Railroad, 103 Mo. 577; Sullivan v. Railroad, 107 Mo. 78; Miller v. Railroad, 109 Mo. 356; Russ v. Railroad, 112 Mo. 53; O'Mellia v. Railroad, 115 Mo. 218; Foster v. Railroad, 115 Mo. 180; Coontz v. Railroad, 121 Mo. 659; Donohoe v. Kansas City, 136 Mo. 670; Bane v. Irwin, 172 Mo. 317; Railroad v. Herbert, 116 U.S. 648. (2) The second ground of appellant's contention, and, in reality, the whole volume of his many contentions, may be couched in the single proposition that, where a master supplies to his servants suitable material and appliances to work with in their duties and entrusts to the servants the selection of the material which is to be used and the manner or mode in which it is used, then for the negligence of a servant in the selection of the material or appliance -- or the construction of an appliance the master is not held liable. We agree to this proposition. The trouble with appellant's contention and authorities is that they cannot be made to fit the facts in this case. And their irrelevancy does not stand the legal test. First, the evidence without dispute shows that appellant did not provide the material and appliance in this case, and leave to the servants the entire work of providing the cleat on the brace. The evidence is clear that the master's vice-principal conceived the work of providing the brace with the cleats on it. He told the men to get the brace for the purpose. He commanded the men to nail on to the brace the two cleats in question. He stood by watching the men whilst the two braces were being nailed on to the brace. He saw how it was being done. He was in five feet of the men who were nailing on the two braces looking at the work. (3) The foreman was not a fellow-servant with respondent. This court, speaking to this precise point, holds: "The foreman in directing plaintiff's work, what he was to do, where he was to do it and how he was to do it, was performing the master's duty pro hac vice and was a vice-principal." Bane v. Irwin, 172 Mo. 317, citing Donohoe v. Kansas City, 136 Mo. 670; Miller v. Railroad, 109 Mo. 350; Russ v. Railroad, 112 Mo. 45; Moore v. Railroad, 85 Mo. 588.
This action originally instituted in the circuit court of the city of St. Louis, on change of venue was sent to the circuit court of St. Charles county, where it was tried. The petition alleges that on the seventh day of July, 1902, plaintiff was in the employ of the defendant, the Rountree Construction Company, in the capacity of a carpenter, and was engaged for said company in assisting in constructing a wall for the Industries Building at the World's Fair grounds in the city of St. Louis, on which building the defendant was a contractor. That on the lastmentioned day whilst plaintiff was in the due discharge of the duties of his employment, he was engaged in taking a rope off of a brace about thirty-five feet above the ground, and whilst so doing, a cleat or step on said brace, designed by the defendant and furnished by the defendant for the plaintiff to be upon and to support him whilst doing said work, broke and caused the plaintiff to fall to the ground, breaking his right leg between the knee and the ankle, crushing and breaking the bones, and so injuring said leg as to necessitate its amputation on the fourteenth of July, 1902. And he was otherwise bruised and permanently injured. The charges of negligence in the petition are that the defendant was negligent in providing for the plaintiff's use a cleat or step which was improperly and insecurely nailed and fastened to said brace and was too weak to sustain plaintiff's weight thereon whilst engaged in doing said work; that defendant was negligent in providing plaintiff said appliance to be upon in the discharge of said duty of his employment, and that defendant's foreman in charge of said work was negligent in ordering and commanding plaintiff to do said work when said cleat was in such defective and insecure condition, as he knew, or by the exercise of ordinary care would have known in time to have averted said injury to plaintiff, which negligence of defendant and its foreman directly caused and contributed to cause plaintiff's said injury. That by reason of said injuries, plaintiff has suffered great pain of body and mind, and has been disabled from labor permanently and is maimed and crippled for life and has incurred large expense for medical attention and for medicine to the sum of fifteen thousand dollars.
The answer of the defendant was a general denial and general plea of contributory negligence and a plea of assumed risk.
The trial resulted in a verdict and judgment for the plaintiff for seven thousand five hundred dollars. After an unsuccessful motion for new trial, the defendant perfected its appeal to this court.
The testimony tends to show that the defendant company on the seventh of July, 1902, and for some months prior thereto, had been engaged as a contractor in the erection of the Varied Industries Building at the World's Fair grounds in the city of St. Louis, and for several months plaintiff had been working...
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