English v. Roberts, Johnson & Rand Shoe Co.

• Decision Date: 16 November 1909
• Citation: 145 Mo. App. 439,122 S.W. 747
• Parties: ENGLISH v. ROBERTS, JOHNSON & RAND SHOE CO.
• Court: Missouri Court of Appeals

122 S.W. 747

145 Mo. App. 439

ENGLISH v. ROBERTS, JOHNSON & RAND SHOE CO.

St. Louis Court of Appeals. Missouri.

November 16, 1909.

Rehearing Denied November 30, 1909.

1. MASTER AND SERVANT (§ 149) — INJURY TO SERVANT — NEGLIGENCE IN GIVING ORDERS.

The master, superior servant, or vice principal may give such orders about the work as are essential to induce a prompt and attentive discharge of the duties imposed on the servant without breaching the obligation to exercise ordinary care for the safety of the servant.

2. MASTER AND SERVANT (§ 149) — INJURY TO SERVANT — NEGLIGENCE IN GIVING ORDERS.

An order to hurry up the work is not negligence unless it tends to subject the servant to a hazard not ordinarily incident to the work, or operates to excite or disconcert him, so that he is unable to exercise due care for his own safety.

3. MASTER AND SERVANT (§ 190) — INJURY TO SERVANT — ORDERS OF SUPERIOR SERVANT.

Where a servant is injured through the negligence of a superior servant in exercising the authority of the master by negligently directing the performance of a dangerous task, the master is prima facie liable for the injury if the injured servant was in the exercise of due care.

4. MASTER AND SERVANT (§ 188) — INJURY TO SERVANT — NEGLIGENCE OF SUPERIOR SERVANT.

Where a servant is injured through the negligence of a superior servant in the performance of a duty of the master, a ground of action against the master is prima facie shown.

5. MASTER AND SERVANT (§ 216) — INJURY TO SERVANT — NEGLIGENCE OF SUPERIOR SERVANT — ASSUMPTION OF RISK.

Where two servants are working together in the performance of a common task, and the inferior servant is injured by the negligence of the superior in the performance of an act incident to the common employment, the master is not liable, as the risk ordinarily incident to the employment was assumed.

6. MASTER AND SERVANT (§ 103) — INJURY TO SERVANT — DUTY OF MASTER AS TO PLACE FOR WORK.

It is an absolute duty of a master which he cannot delegate to furnish his employé a reasonably safe place in which to work.

7. MASTER AND SERVANT (§ 188) — INJURY TO SERVANT — ACTS OF SUPERIOR SERVANT.

It is the character of the act complained of, and not the rank of the servant, which determines the master's liability for the acts of a servant occupying the dual capacity of fellow and also superior servant.

8. MASTER AND SERVANT (§ 103) — INJURY TO SERVANT — DELEGATION OF DUTIES.

Where the master intrusts to another a duty which he cannot delegate, and such other neglects the same and a servant is injured, the master is liable, irrespective of the character of the act.

9. MASTER AND SERVANT (§ 103) — INJURY TO SERVANT — DELEGATION OF DUTY.

A master cannot delegate to another, so as to relieve himself from liability for a breach thereof, the duty to furnish a reasonably safe place to work, reasonably safe tools and appliances, reasonable rules governing the work, competent fellow servants, and proper direction and control of the work.

10. MASTER AND SERVANT (§ 190) — INJURY TO SERVANT — ACTS OF SUPERIOR AND INFERIOR SERVANT.

A servant injured by the acts of another occupying the dual capacity of superior and fellow servant cannot recover against the master without showing that the injury resulted from an act in the exercise of the authority of the master distinct from any manual act in the common employment, unless such act operated as a breach of a nondelegable duty of the master.

11. MASTER AND SERVANT (§ 190) — INJURY TO SERVANT — ACT OF SUPERIOR SERVANT.

The act of one occupying the dual capacity of superior and fellow servant in prematurely starting a machine at which both he and plaintiff worked, resulting in plaintiff's injury, was in the capacity of fellow servant for which the master is not liable.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action for personal injuries by Arthur E. English, by his next friend, against the Roberts, Johnson & Rand Shoe Company. From a judgment for plaintiff, defendant appeals. Reversed.

Merritt U. Hayden, for appellant. C. W. Rutledge, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries alleged to have been inflicted upon him through defendant's negligence while plaintiff was engaged in feeding a heeling machine in defendant's shoe factory. The plaintiff recovered, and the defendant appeals.

It appears that the plaintiff was a boy about 15 years of age. He had had several months' experience in feeding and operating a heeling machine in the defendant's and other shoe factories; that is, he had worked for a number of months with a machine identical with the one on which he was injured, and was entirely familiar with its construction and mode of operation. He applied to the defendant's foreman for a position a day or two before he was injured, and, upon being given employment, was assigned to feed a machine in charge of and being operated by one Thein. Thein, too, was a boy of about the same age as the plaintiff. He had been engaged for a considerable period in operating the machine referred to, and was entirely familiar therewith. There is no controversy in the case as to the competency of Thein. The evidence tends to prove that Thein, if not a vice principal, was at least a superior servant of the defendant, and as such had charge of the particular heeling machine mentioned, and was given authority to direct the plaintiff where to work and how to work, etc. The plaintiff was instructed to do what Thein bade him to do, and to assist him in and about the operation of the machine in Thein's charge. The machine was an appliance for the purpose of affixing heels to shoes in the course of manufacture. It was the duty of Thein to operate this machine by placing his foot upon a pedal, thereby causing a plunger to strike the heel of the shoe resting in the machine, and thus drive the nails essential to affix the heel thereto. It was the plaintiff's duty to insert the heel into the machine with his hand. It appears that the two operated the machine together, each performing manual labor concurrently to that end. While the plaintiff was in the act of inserting a shoe heel for the purpose mentioned, Thein, the superior servant, placed his foot upon the pedal, and caused the plunger or hammer to descend upon the heel, which act resulted in crushing plaintiff's fingers between the heel and the sole of the shoe. A short time prior to receiving his injuries the plaintiff informed Thein that he had been feeding a heeling machine at another factory, and that they only heeled about 18 cases of shoes per day where he had been working; that he was accustomed to feed a machine in heeling 18 cases a day. Thein replied substantially that the plaintiff would be required to work faster than that, as they were accustomed to heeling and turning out 60 cases of shoes per day in defendant's factory. About five minutes before the plaintiff received his injury, Thein instructed him to hurry up with the work, to the end that they might finish their task, and go out and walk around a while. This alleged order to hurry up, according to the plaintiff's testimony, was given about five minutes before the plaintiff was injured, and he says that he was hurrying with the work when he received the injury mentioned. The suit predicates, in part, upon the order of Thein to plaintiff to hurry up with the work and in part upon the fact that Thein negligently operated the machine at a rate of speed much faster than the plaintiff was accustomed to attend the same. The court refused to peremptorily direct a verdict for the defendant, and referred the...