Compton v. Louis Rich Construction Company

• Decision Date: 11 October 1926
• Docket Number: 25486
• Citation: 287 S.W. 474,315 Mo. 1068
• Parties: Perry Compton v. Louis Rich Construction Company, Appellant
• Court: Missouri Supreme Court

287 S.W. 474

315 Mo. 1068

Perry Compton v. Louis Rich Construction Company, Appellant

No. 25486

Supreme Court of Missouri

October 11, 1926

Appeal from St. Louis County Circuit Court; Hon. G. A Wurdeman, Judge.

Affirmed.

Ralph & Baxter for appellant.

(1) Respondent's evidence failed to make a prima-facie case and a demurrer to the evidence should have been sustained. (a) Negligence on the part of the defendant cannot be presumed and the court has no right to presume it. If the respondent by his evidence has not shown that appellant was negligent in allowing respondent to use this tractor or in ordering him to use it, as the case may be, then it is the duty of the court to sustain a demurrer to plaintiff's evidence. Roberts v. Tel. Co., 166 Mo. 370. (b) The plaintiff in a personal injury suit, in order to recover must establish a prima-facie case upon the specific negligence charged in his petition, and the master is not an insurer of the safety of the place where the servant is put to work. It is only incumbent upon him to exercise ordinary care for the safety of a servant, and in order for the servant to recover he must offer proof of the negligence of the master and connect the same with the injury as its cause. Pippin v. Construction Co., 187 Mo.App. 361; McGahan v. Transit Co., 201 Mo. 500. (c) Unless the foreman's order to respondent to take the tractor and bring in the water tank included an order to handle said tractor in a particular manner the master is not liable for the giving of such an order. McCollin v. Masonry & Const Co., 247 Mo. 174. (2) Respondent's own testimony clearly makes out a case of assumption of risk on his part, coupled with his own negligence, and he cannot recover. Roberts v. Tel. Co., 166 Mo. 378; Thomas v. Railroad, 109 Mo. 199; Steinhauser v. Spraul, 127 Mo. 562; Mathis v. Stockyards Co., 185 Mo. 444; Powers v. Loose-Wiles Co., 195 Mo.App. 433; Nugent v. Milling Co., 131 Mo. 245; Flack v. Railway Co., 285 Mo. 28. If the Fordson tractor was too light for the purpose of hauling in the water tank, such defect was a patent one, open as much to the observation of respondent, a mechanic, as it was to appellant, his employer, and this being the case he is held to a knowledge of such defect whether he actually knew of same or not, and he cannot recover. Mathis v. Stockyards Co., 185 Mo. 446; McGinnis v. Press Brick Co., 261 Mo. 298; Powers v. Loose-Wiles Co., 195 Mo.App. 431. (3) Respondent charges two specific acts of negligence on the part of the appellant, viz: first, that the tractor was too light, and, second, that it was not suitably equipped with connections, and he must show that the negligence of the appellant in the particulars complained of were the proximate cause of his injury or he cannot recover. The question of the suitability of connections was abandoned by respondent at the trial, and that issue was not submitted to the jury. There was no evidence adduced that the tractor was too light or did not have proper connections. Van Bibber v. Swift & Co., 286 Mo. 317; Pippin v. Const. Co., 187 Mo.App. 361. "Where a specific act of negligence is charged the res ipsa loquitur doctrine is not applicable." Rich v. White, 239 S.W. 141. (4) The testimony of respondent clearly shows that he placed a severer strain on said tractor than was contemplated by his master, by his failure to remove the earth packed around the wheels of the water tank when he knew the wheels thereof were imbedded in the earth, and he cannot recover. Powell v. Electrical Co., 195 Mo.App. 150. (5) Instruction 1 offered is bad, as it is broader than the petition or evidence, in that in several parts of said instruction it allowed the jury to find for the plaintiff if the tractor was "unsuitable for said purpose," without requiring them to find that it was "unsuitable for said purpose" because it was too light, and it gave the jury a roving commission to find for plaintiff upon any one of various reasons they might have for believing the tractor was "unsuitable for said purpose," or was "dangerous." The jury might have found that the tractor turned over because the "gearing was defective for the reason that where it should be on top it is on the bottom," or because "the pinion will climb the ring gear," as testified to by witness Koch.

Taylor, Mayer & Shifrin for respondent.

(1) In considering a demurrer to the evidence, the jury being the arbiters of the facts, the court must accept plaintiff's "evidence as true, whether contradicted or not by defendant's proof, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason. It takes defendant's testimony as untrue where contradicted by plaintiff's proof. It leaves to the jury to settle the weight due the testimony, the credit due the witnesses and to reconcile contradictions, if any, in proof. So, it allows to plaintiff's case, the benefit of every reasonable inference of fact arising on all the proof." Stauffer v. Street Ry. Co., 243 Mo. 316. On this basis, the plaintiff made a case for the jury. (a) Having all this evidence before it, the jury had the right to deduce therefrom the fact that the Fordson tractor was too light to pull the water tank, and that when an attempt would be made to pull it with the Fordson the latter was liable to rear up and fall over on and crush the driver. The verdict shows that they did make that deduction. (b) It is the duty of a master to exercise ordinary care to see that his servant is furnished with reasonably safe instrumentalities with which to do his work. If he fails in that duty and his servant is thereby injured the master is liable. Minnier v. Railway Co., 167 Mo. 99; Bradley v. Coal Co., 167 Mo.App. 177. Before furnishing the servant with an instrumentality with which to do a piece of work for the master, it is that master's duty to exercise reasonable care to ascertain whether or not that instrumentality is reasonably fit for that purpose. If he fails to perform that duty and, because of such failure, the servant is injured, the master is liable. The fact that the master is ignorant does not exculpate him if, upon proper inquiry, he could have learned that the Fordson was too light to pull that water tank. 3 La Batt on Master & Servant, secs. 1024, 1023, pp. 2713, 2712. (c) Defendant's claim is that unless the foreman's order included an order to handle the tractor in a particular manner the master is not liable for the giving of such an order. The evidence shows that the order was to bring in the water-tank wagon with the Fordson tractor and that is exactly what Compton attempted to do. (2) The defense of assumption of risk has no place in the case at bar. The foundation of the case for plaintiff is that the master was negligent in furnishing him with an unsuitable and unfit instrumentality with which to perform a certain task and also negligent in ordering him to perform that task by using that instrumentality. To this there can be but two defenses, (a) there was no such negligence, and (b) although the master may have been thus negligent yet the servant cannot recover because of his own negligence which directly contributed to cause his injury. Fish v. Railroad, 263 Mo. 124; Williams v. Pryor, 272 Mo. 623; Littig v. Urbauer-Atwood, 292 Mo. 241; Doody v. California W. M. Co., 216 S.W. 534; Soltesz v. Provision Co., 260 S.W. 992. (3) Defendant's next point is that if the Fordson was too light for the purpose of hauling the water tank then that defect was patent and as much open to the observation of the servant as of the master, and if, by its use, the servant was injured because of such defect he cannot recover. If this defect was patent, then there is something wrong with the evidence offered by defendant, who sought to show that the Fordson was well fitted for the task to which the master had assigned it. Whether or not it was so defective was a bitterly contested issue, which, so far as this case is concerned, was finally solved by the verdict of the jury. Holmes v. Brandenburg, 172 Mo. 65.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Plaintiff seeks to recover damages for personal injuries alleged to have been occasioned by defendant's negligence. Defendant is a corporation which was engaged in the construction of a concrete roadway or pavement on Manchester Road in St. Louis County. Plaintiff was injured on May 15, 1922, at or about noon of that day. Plaintiff alleges in his petition that, on said date and while in the employ of defendant, he was ordered and instructed by a superintendent or foreman of defendant, in charge of and directing plaintiff, to drive a Fordson tractor from defendant's construction camp to a point on said Manchester Road and, with said tractor, to bring back to the construction camp a certain water-tank wagon, which had been left standing on Manchester Road some distance from the construction camp; that said water-tank wagon was large and heavy and was facing westwardly on said road and was partially mired, and, in order to bring back said tank wagon as ordered, it was necessary to connect the tractor with said tank wagon and turn the tank wagon around so as to face eastwardly; that, while endeavoring so to turn said tank wagon around with the Fordson tractor, the tractor was caused to turn over and fall upon plaintiff, because of the negligence and carelessness of defendant and its agents, charged, in the language of the petition, to be as follows:

"1st. That defendant's said superintendent or foreman negligently and carelessly ordered and required plaintiff to use a Fordson tractor for the purpose of turning around and bringing in said water-tank wagon, when the said foreman or superintendent knew, or by the exercise of ordinary care on his part should have...