Donnelly v. Aida Min. Co.

Citation77 S.W. 130,103 Mo. App. 349
CourtCourt of Appeal of Missouri (US)
Decision Date23 November 1903
PartiesDONNELLY v. AIDA MIN. CO.<SMALL><SUP>*</SUP></SMALL>

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by John Donnelly against the Aida Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. R. Robertson, for appellant.

Howard Gray, for respondent, cited the following authorities: Kelly v. Stewart, 93 Mo. App. 48; Dayharsh v. Hannibal & St. Joseph R. R. Co., 103 Mo. 570, 15 S. W. 554, 23 Am. St. Rep. 900; Russ v. Wabash Western R. R. Co., 112 Mo. 45, 20 S. W. 472, 18 L. R. A. 823; Haworth v. K. C. South R. R. Co., 94 Mo. App. 215, 68 S. W. 111; Borden v. Falk Co., 71 S. W. 478, 97 Mo. App. 566 (by this court Jan. 5, 1903); Gormly v. Iron Works, 61 Mo. 492; Brennan v. Berlin Iron Bridge Co., 74 Conn. 382, 50 Atl. 1030; M. K. & T. R. R. Co. v. Smith (Tex. Civ. App.) 72 S. W. 418; Merchants' & Planters' Oil Co. v. Burns (Tex. Civ. App.) 72 S. W. 626.

ELLISON, J.

This is an action for personal injury to plaintiff, alleged to have resulted from the negligence of defendant. The plaintiff prevailed in the trial court. It appears that plaintiff and others were engaged as miners in defendant's lead and zinc mine under the charge and supervision of a foreman who employed and discharged the men; that these employés and the foreman, at the time of the casualty, were engaged in mining about 120 feet under ground, and that in cutting in the top of the drift was cut ahead so that it left a slope from the top down; that a large lot of dirt and rock had been blasted loose at the top of the drift, and that the foreman and another were at the top getting the dirt down, and plaintiff and others were at the bottom shoveling it into cars, whence it was taken to the shaft, and thence taken up to the surface. The evidence tended to show that while plaintiff was engaged in stooping and shoveling the dirt he could not observe what the foreman was doing at the top of the slope. At the moment of the accident plaintiff was attempting to change the position of a large rock so that he could break it in smaller pieces, and thereby be able to shovel it onto the car. At this time the foreman, without warning of any kind, rolled another rock from the top, which struck plaintiff violently as it reached the bottom, and crushed his hand. There was ample evidence to show that the foreman's act was negligent, and that plaintiff was in the exercise of due care when injured, and we do not feel called upon to discuss but one question, which is practically all that is argued by the counsel.

Defendant contends that, notwithstanding the foreman was ordinarily not a fellow servant with the employés under his charge and control, and that his acts, ordinarily, were the acts of the master, yet he may have a dual capacity; that he may be either principal or fellow servant, depending altogether on the character of the act with which he is charged; that, although he was defendant's foreman, placed in charge and control of the plaintiff, yet, if plaintiff's injury was the result of the foreman's taking part in the labor and negligently performing such labor, it was the negligent act of a fellow servant, for which defendant is not liable. The position thus taken by defendant is directly opposed to the case of Hutson v. Ry. Co., 50 Mo. App. 300, and other cases cited in plaintiff's brief. In that case the section foreman negligently struck one of his men with a pick which he was himself wielding in an effort to help remove a railroad tie. We ruled that there was no logical distinction between the act of a vice principal in negligently ordering a servant to do an imprudent thing and in doing the thing himself. In the one case he wills the servant shall do the act, and in the other he wills that he...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT