Crane v. Foundry Co.
| Decision Date | 29 March 1929 |
| Docket Number | No. 27586.,27586. |
| Citation | 17 S.W.2d 945 |
| Parties | EMMETT CRANE v. LIBERTY FOUNDRY COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.
AFFIRMED.
Jones, Hocker, Sullivan & Angert and Williard A. McCaleb for appellant.
(1) The court erred in failing and refusing to give to the jury defendant's instruction in the nature of a demurrer to the evidence. (a) The evidence was insufficient to warrant a finding that the switch involved in the accident to plaintiff was open at the time the foreman gave the alleged negligent order; or that if the switch was open the defendant actually knew thereof or that the switch had been open for sufficient length of time to charge defendant with constructive knowledge thereof. Wilson v. Mo. Pac. Ry. Co., 5 S.W. (2d) 19; Manche v. Box Co., 262 S.W. 1021; Jones v. Gillioz, 9 S.W. (2d) 91; Bailey v. Dry Goods Co., 149 Mo. App. 656; Oker v. Const. Co., 158 Mo. App. 213; Bennett v. Lime Co., 146 Mo. App. 565. (b) "The master may give reasonable orders to his servants to the end that the work they are required to perform may be facilitated and "an order to hurry" is not in itself any evidence of negligence. English v. Rand Shoe Co., 145 Mo. App. 439; Ryan v. Lea, 249 S.W. 685; Pulley v. Standard Oil Co., 136 Mo. App. 172. (c) The evidence of negligence, if any there was in this case, was the act of a fellow-servant. Ryan v. McCulley, 123 Mo. 636; Card v. Eddy, 129 Mo. 510; Burge v. Am. Car Co., 274 S.W. 845; Richardson v. Heckel, 171 Mo. 666; Livengood v. Lead Co., 179 Mo. 229; Chrismer v. Bell Tel. Co., 194 Mo. 212; Van Bibber v. Swift & Co., 286 Mo. 338; Funk v. Fulton Iron Works, 277 S.W. 569; Hawk v. Lumber Co., 166 Mo. 121; Jackson v. Mining Co., 106 Mo. App. 448; Garland v. Ry. Co., 85 Mo. App. 583; Sheehan v. Prosser, 55 Mo. App. 569; Stapleton v. Mfg. Co., 202 S.W. 370; Howard v. New Madrid, 148 Mo. App. 53; English v. Rand Shoe Co., 145 Mo. App. 449; Dickinson v. Jenkins, 144 Mo. App. 132; Radke v. Basket Co., 229 Mo. 1; Fleeman v. Mfg. Co., 141 S.W. 481. (d) The verdict and judgment are based on speculation and surmise. Delo v. Mining Co., 141 S.W. 687. (2) The court erred in giving to the jury plaintiff's Instruction 3. (a) The instruction is confusing and misleading. (b) The instruction was erroneous in authorizing a finding of fact not in evidence. Lukamiski v. Foundries Co., 162 Mo. App. 631. (c) The instruction was erroneous in assuming facts not in evidence. (d) The instruction is erroneous, in that it is broader than the pleadings. State ex rel. Coal Co. v. Ellison, 270 Mo. 645; Abbott v. Railway, 83 Mo. 271; Schlereth v. Mo. Pac. Ry. Co., 96 Mo. 509; Letanovsky v. Shoe Co., 157 Mo. App. 120. (e) The instruction authorizes a recovery for all injuries mentioned in the evidence and assumes that plaintiff's condition was the result of the alleged accident without requiring the jury to find what injuries plaintiff suffered as a direct result of defendant's alleged negligence.
Kurt Von Reppert and Henry B. Budde for respondent.
(1) The court did not err in failing and refusing to give to the jury defendant's instruction in the nature of a demurrer to the evidence at the close of all of the evidence. (a) Because under all of the evidence and the most favorable inferences to be drawn therefrom in favor of the respondent, the jury were justified in finding that the order and direction and the signal by the foreman to the plaintiff to come on to the cupola to get molten metal was negligence. (b) The jury were justified in finding further, that at the time the said foreman of plaintiff signalled plaintiff to come on, the switch was not set in line of travel on the rail on which plaintiff had to come and that it was open when he came upon it. (c) The jury were justified in finding from the evidence that the foreman from where he was standing at the time he gave said signal could have seen the switch and ascertain whether it was set in line or not or open, but did not look and was paying no attention to it, but yet gave the signal to plaintiff to come on, and that when he gave the signal he knew that plaintiff was coming on and expected him to come on over said rail, and said switch, in reliance upon said signal from him that the switch was properly set for him, and further that when the foreman gave said signal for plaintiff to come on over said switch he did not know whether it was open or closed, and that plaintiff was not able while hurrying to the cupola to ascertain whether the switch was open or closed and could not stop with the heavy shank behind him to set the switch, and that, therefore, the order and direction and signal of the foreman was negligence. (d) Under the facts and the evidence and the principles of law announced in the following cases it was a question of fact for the determination of the jury whether the order and direction of the foreman in the instant case under all the facts and circumstances was negligence: McCauley v. Brewing Assn., 254 S.W. 868; McCarver v. Lead Co., 268 S.W. 687; Lampe v. Express Co., 266 S.W. 1009; Ingram v. Coal Co., 5 S.W. (2d) 413; Stuart v. Standard Oil Co., 244 S.W. 970; State ex rel. v. Robertson, 188 S.W. 101; Brann v. Brick Co., 288 S.W. 942; Daggett v. Am. Car Co., 284 S.W. 855; Wright v. Iron Co., 250 S.W. 942; Schlueter v. Connecting Ry. Co., 296 S.W. 105; Bennett v. Hood, 296 S.W. 1028; Hoffman v. Lime Co., 296 S.W. 764; Barnard v. Brick Co., 176 S.W. 1108; Bane v. Irwin, 72 S.W. 522; Horne v. Power Co., 274 S.W. 673; Ward v. Ice Co., 264 S.W. 80; Stuba v. Am. Car Co., 270 S.W. 145; Wuellner v. Planing Mill Co., 259 S.W. 764; Stubb v. American Press, 254 S.W. 105; Schultheis v. United Rys. Co., 236 S.W. 54. (2) Plaintiff's Instruction 3 was properly given. It submitted to the jury for a finding all of the facts and circumstances surrounding the alleged giving of a negligent order and direction of the foreman in order that the jury might determine whether or not under the circumstances detailed in the evidence in this case the order and the direction of the foreman was negligent. Northern v. Fisheries Co., 320 Mo. 1011; Wright v. Iron Co., 250 S.W. 942; Foster v. Davis, 252 S.W. 433; Edmonson v. Hotel Statler Co., 267 S.W. 612; Lampe v. Express Co., 266 S.W. 1009; Wolfe v. Payne, 241 S.W. 915; Menefee v. Diggs, 172 S.W. 427; Bennett v. Hood, 296 S.W. 1098; Bauer v. Fahr, 282 S.W. 282; Halley v. Truck Co., 274 S.W. 507; Schlueter v. Connecting Ry. Co., 296 S.W. 105. (a) Instruction 3, given on behalf of plaintiff, is not reversible error because it submitted to the jury for a finding of fact that by the signal given under the circumstances detailed, the foreman assured plaintiff that the way was clear for him to come on to the cupola and that plaintiff acted and relied upon said signal and assurance, together with all the other facts and circumstances surrounding the giving of that signal, in order to determine whether or not in the instant case, the order and direction of the foreman was negligent, and although no negligent assurance, was pleaded, and by requiring of the jury a finding of those facts the plaintiff assumed an unnecessary burden. The jury were not asked in this instruction to find that there was a negligent assurance, but merely whether or not there had been a negligent order and direction. Bane v. Irwin, 72 S.W. 522; Wolfe v. Payne, 241 S.W. 915; Wright v. McPike, 70 Mo. 175; Drummond Inv. Co. v. Trust Co., 178 S.W. 482; Foster v. Davis, 252 S.W. 433; Doer v. Fire Ins. Co., 253 S.W. 39; Milling Co. v. Fire Ins. Co., 219 S.W. 671; Lampe v. Express Co., 266 S.W. 1009; Daggett v. Am. Car. Co., 284 S.W. 855; Halley v. Truck Co., 274 S.W. 507; Raleigh v. Raleigh, 5 S.W. (2d) 689. (b) As the master was present in the person of the foreman and directed plaintiff to come on with the shank by signaling him when the cupola bell rang, this was an assurance of safety and plaintiff had a right under such circumstances to defer to the superior judgment and skill of his foreman and was therefore not guilty of negligence for obeying the direct command of his master for coming on over the switch, as a matter of law. Bloomfield v. Const. Co., 118 Mo. App. 254; Smith v. Kansas City, 125 Mo. App. 150; Herdler v. Stove Co., 136 Mo. 3; Erwin v. Tel. Co., 173 Mo. App. 508; Buckner v. Mule Co., 221 Mo. 700; Whitworth v. Shurk, 197 Mo. App. 404; Gilbert v. Hilliard, 222 S.W. 1029; Wuellner v. Mill Co., 303 Mo. 38; Ingram v. Coal Co., 5 S.W. (2d) 413. (c) Plaintiff's Instruction 3 submitted to the jury for a finding of fact the issue as to whether or not plaintiff was negligent under the circumstances detailed in the evidence in carrying out the order and directions of the master by and through his foreman, and it was not broader than the issues under the pleadings and for this reason all the circumstances in evidence concerning the signal by the foreman were proper. Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455; De Wolf v. Stix, Baer & Fuller, 273 S.W. 172; Bauer v. Fahr, 282 S.W. 282; McKenzie v. Randolph, 257 S.W. 126.
Action for the recovery of damages for personal injuries alleged to have been suffered by plaintiff on November 7, 1924, while in the employ of defendant corporation as a laborer in its iron foundry in the city of St. Louis. At the time of his alleged injuries, plaintiff was engaged in pulling an empty shank or ladle, weighing approximately 250 pounds, along an overhead rail, or track, to a cupola, or blast furnace, where the ladle was to be filled with molten metal. The overhead rail, or track, from which the ladle was suspended, and upon which it was carried, was one of a number of such tracks extending to different departments of defendant's foundry, the various tracks being connected by overhead switches, by means of which the ladles could be conveyed from one track to another. In pulling the empty ladle, plaintiff...
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