Dickey v. Dickey

• Citation: 86 S.W. 909,111 Mo.App. 304
• Parties: NATHANIEL DICKEY, Administrator, etc., Respondent, v. WALTER S. DICKEY, Appellant
• Decision Date: 03 April 1905
• Court: Kansas Court of Appeals

86 S.W. 909

111 Mo.App. 304

NATHANIEL DICKEY, Administrator, etc., Respondent, v. WALTER S. DICKEY, Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1905

Appeal from Cass Circuit Court.--Hon. Wm. L. Jarrott, Judge.

REVERSED.

Judgment reversed.

Frank P. Sebree, John D. Wendorff and Pratt, Dana & Black for appellant.

(1) When an accident, although possible, yet not probable according to ordinary and usual experience, occurs and causes an injury, defendant is not guilty of negligence, because he does not take precautionary measures to prevent the injury which, if taken, would have prevented it, if the injury could not reasonably have been anticipated. Since there was not a scintilla of evidence that defendant was negligent in any manner whatever, plaintiff was not entitled to recover and defendant's instruction numbered 1 should have been given. Breen v. Cooperage Co., 50 Mo.App. 202, 211 212, 214; Fuchs v. St. Louis, 167 Mo. 620, 645, 652; Brewing Ass'n v. Talbot, 141 Mo. 674, 683-5; Sullivan v. Railway, 133 Mo. 1; Hysell v. Swift & Co., 78 Mo.App. 39, 47-8, 51; Epperson v. Telegraph Co., 155 Mo. 346, 382-3; O'Malley v. Railway, 113 Mo. 319; Guffey v. Railway, 53 Mo.App. 462, 469. (2) Hempell was neither negligent nor in charge of the clay press at the time of the accident. (3) Hempell was not in charge of the press, nor had he any control over the governing machinery that worked the piston. He was the temporary leverman and his employment only related to and all he was authorized to do was to operate the leverman's lever for a few moments while Williams, the leverman, measured a ring. Any act of his in omitting to communicate information given him by plaintiff to the pressman, if he did fail to do so, was beyond the scope of his employment and the defendant is not liable therefor. Hamlet v. Railroad, 89 Mo.App. 354; Bequette v. Railway, 86 Mo.App. 601; Wood on Master and Servant (2 Ed.), 525, 527; Farber v. Railway, 116 Mo. 81; Stringer v. Railway, 96 Mo. 299; Cousins v. Railway, 66 Mo. 572; Voegeli v. Marble & Granite Co., 49 Mo.App. 643; Wood on Master and Servant (2 Ed.), 309; Farber v. Railway, 32 Mo.App. 378; Jones v. St. Louis, etc., Co., 43 Mo.App. 398; Snyder v. Railway, 60 Mo. 413, 419; Sherman v. Railway, 72 Mo. 62; Watson v. Coal Co., 52 Mo.App. 366. (4) Plaintiff was guilty in the manner in which he addressed Hempell, and in choosing the more dangerous of two methods in measuring the shaft. When plaintiff's own evidence shows that he was guilty of contributory negligence, the trial court should take the case from the jury. Moore v. Railway, 146 Mo. 572, 579, 580; Hurst v. Railway, 163 Mo. 309, 321; Weber v. Cable Co., 100 Mo. 194, 201; Yancey v. Railroad, 93 Mo. 433; Buesching v. Gas Light Co., 73 Mo. 219, 229; 1 Bailey on Master and Servant, secs. 1121, 1123; 1 LaBatt on Master and Servant, sec. 333. (5) This court rightfully decided in this case that plaintiff and Hempell were fellow servants, and whether Hempell failed to notify DeLong or not of plaintiff's conversation with him, the defendant is not liable. Grattis v. Railroad, 153 Mo. 380; McCarty v. Hotel Co., 140 Mo. 307; Parker v. Railroad, 109 Mo. 362; Higgins v. Railroad, 104 Mo. 413; Murray v. Railway, 98 Mo. 573; Sherrin v. Railroad, 103 Mo. 378; Rohback v. Railroad, 43 Mo. 187; McGowan v. Railroad, 61 Mo. 528; McDermott v. Railroad, 30 Mo. 115; Traka v. Railway, 100 Ia. 205. (7) A master can conduct his business in his own way, and the servant, knowing the hazards of his employment as the business is conducted, impliedly waives the right to compensation for injuries resulting from causes incident thereto, though a different method of conducting the business would have been less dangerous. Beckman v. Brew. Assn., 98 Mo.App. 555, 560; Cothron v. Packing Co., 98 Mo.App. 343, 349; Bair v. Heibel, 103 Mo.App. 621, 632; Harrington v. Railroad, 104 Mo.App. 663, 670-1; Holmes v. Brandenbaugh, 172 Mo. 53, 65; LaBatt on Master and Servant, pp. 85 and 86; Bradley v. Railroad, 138 Mo. 293; Jackson v. Railroad, 104 Mo. 448; Berning v. Medort, 56 Mo.App. 443; Junior v. Electric Company, 127 Mo. 79; Lucey v. Oil Company, 129 Mo. 32; Nugent v. Milling Company, 131 Mo. 241; Holloran v. Iron Company, 133 Mo. 470.

F. F. Rozzelle, Frank P. Walsh, R. T. Railey, John G. Park for respondent.

(1) It was a question for the jury whether or not Hempell was in charge of the clay presses when plaintiff spoke to him. Hempell was ordered by the foreman to act as leverman and had not been relieved. It, therefore, was his duty to stay at the press during the absence of DeLong and Williams, and guard it from injury and prevent its injuring others. This was plainly within his express or implied authority. Porter v. Woods, 138 Mo. 551, 552; Knowles v. Bullene, 71 Mo.App. 341; Ephland v. Railway, 137 Mo. 187, 196; Canfield v. Railroad, 59 Mo.App. 354, 362; Garretzen v. Duenckel, 50 Mo. 104; Schmidt v. Adams, 18 Mo.App. 432; Douglass v. Stephens, 18 Mo. 362, 367; 1 Sherman & Redfield on Neg., sec. 148, quoted in 137 Mo. l. c. 196. (2) Defendant's foreman, Williams, had left Hempell apparently in charge of the machine, and for his defaults in connection therewith, defendant must answer. Clack v. Supply Co., 72 Mo.App. 506; May v. Trust Co., 138 Mo. 275, 282; Cross v. Railway, 71 Mo.App. 585, 590, 141 Mo. 132. The instructions "taken together," as they must be, were therefore complete and unexceptionable. Nickel v. Paper Co., 68 S.W. 956, 95 Mo.App. 226; Swofford v. Spratt, 67 S.W. 702, 703, 93 Mo.App. 631; Anderson v. Railroad, 81 Mo.App. 116, 124; Anderson v. Railroad, 161 Mo. 411, 427. The absence of suitable rules and system of work, requiring the suspension of the operation of the press while being measured, and the failure to provide a code of signals, has been found by the jury to be negligence. The master's failure to prescribe such rules or system of work is his personal negligence, for which he is liable. Schroeder v. Railroad, 108 Mo. 322, 329; Reagan v. Railroad, 93 Mo. 348, 352, citing Shearman & Redf. on Neg., sec. 93. (3) The servant does not assume the risk of injury from his master's personal negligence. Pauck v. Beef Co., 159 Mo. 467, 477; Settle v. Railroad, 127 Mo. 336; Railway v. O'Brien, 161 U.S. 451, 40 L.Ed. 766; Hough v. Railway, 100 U.S. 213, 25 L.Ed. 612; Pauck v. Beef Co., 159 Mo. 467, 166 Mo. 639; Wendler v. Furnishing Co., 165 Mo. 527; Poindexter v. Paper Co., 84 Mo.App. 352, 357; Schroeder v. Railway, 108 Mo. l. c. 328, 331; Foster v. Railway, 115 Mo. l. c. 179; Rutledge v. Railroad, 110 Mo. 312; s. c., 123 Mo. l. c. 132, 138; Francis v. Railroad, 110 Mo. l. c. 394, 395; Abell v. Railroad, 128 N.Y. 662; Whittaker v. Railroad, 126 N.Y. 544. (4) Plaintiff and Hempell were not fellow-servants. Persons employed in different departments are not fellow-servants. Musick v. Packing Co., 58 Mo.App. 322, 334; Sullivan v. Railroad, 97 Mo. 113; Parker v. Railroad, 109 Mo. 362; Dixon v. Railroad, 109 Mo. 413; Condon v. Railroad, 78 Mo. 567; Hall v. Railroad, 74 Mo. 298; Relyea v. Railroad, 112 Mo. 86, 93. Persons operating machinery and persons repairing it are not fellow-servants. The master is liable to members of either class for injuries caused by the negligence of members of the other class. Oglesby v. Railway, 150 Mo. 137; Musick v. Packing Co., 58 Mo.App. l. c. 334; Condon v. Railway, 78 Mo. l. c. 573; Long v. Railway, 65 Mo. 225; Leubke v. Railway, 59 Wis. 127, 131; Ford v. Railroad, 110 Mass. 240; Railroad v. Herbert, 116 U.S. 653; Hough v. Railway, 100 U.S. 213; Railway v. Hoyte, 122 Ill. 369, 374; Steel Co. v. Shields, 146 Ill. 603, 610. Plaintiff and Hempell not having been brought into such habitual association that plaintiff might observe Hempell's conduct, they were not fellow-servants. Relyea v. Railroad, 112 Mo. 86, 93; Glover v. Bolt Co., 153 Mo. l. c. 342; Dixon v. Railroad, 109 Mo. l. c. 424. (5) Defendant is liable if Hempell was incompetent and defendant with knowledge, or the means of knowledge thereof, retained him in his service. It is immaterial whether Hempell was plaintiff's fellow-servant or not. Neilon v. Railway, 85 Mo. 599; Maxwell v. Railway, 85 Mo. 95; Williams v. Railroad, 109 Mo. 475; Grube v. Railway, 98 Mo. 330; Hughes v. Fagin, 46 Mo.App. 37; Hilts v. Railway, 55 Mich. 437; Stone Co. v. Whalen, 151 Ill. 472; Testimony of Sorrell, R. 48, 49, 54, 56; Testimony of Chas. Williams, R. 57-59. (6) Defendant was negligent in failing to prescribe a suitable system of work, rules and signals. Schroeder v. Railway, 108 Mo. l. c. 328; Foster v. Railway, 115 Mo. l. c. 179; Rutledge v. Railroad, 110 Mo. 312, 319; s. c., 123 Mo. l. c. 132, 138; Browning v. Railroad, 124 Mo. l. c. 69, 70; Bluedorn v. Railroad, 108 Mo. 439, 448; Ellingson v. Railway, 60 Mo.App. 679, 686.

OPINION

JOHNSON, J.

This suit was brought in the Jackson Circuit Court but was tried in Cass county where it was taken on change of venue. It is an action to recover damages for personal injuries alleged to have been sustained as the result of defendant's negligence. Plaintiff recovered judgment in the sum of forty-two hundred and fifty dollars.

At the time of the injury, September 13th, 1899, defendant was engaged in operating in the town of Deepwater a large factory--the output of which was tiling and sewer pipe. Our concern centers upon a certain machine located in the main factory building in use in the making of sewer pipe. This apparatus and its method of operation, so far as they bear upon the questions before us may be described as follows: The raw material to be treated was carried to the top of the building which was four stories high. When ready for moulding it was placed in a large hopper in a room on the fourth floor and from there fed downward as required into a cylinder...