Erwin v. Missouri & Kansas Telephone Co.

• Decision Date: 07 July 1913
• Citation: Erwin v. Missouri & Kansas Telephone Co., 158 S.W. 913 (Mo. App. 1913)
• Parties: ERWIN v. MISSOURI & KANSAS TELEPHONE CO.
• Court: Missouri Court of Appeals

158 S.W. 913

ERWIN v. MISSOURI & KANSAS TELEPHONE CO.

Springfield Court of Appeals. Missouri.

July 7, 1913.

Rehearing Denied July 25, 1913.

1. APPEAL AND ERROR (§ 1127) — AFFIRMANCE ON MOTION — NOTICE OF INTENTION TO FILE.

Rev. St. 1909, § 2048, requires the appellant to file a transcript of the record with the clerk of the Court of Appeals at least 15 days before the first day of the term at which the appeal is returnable, under section 2047, which provides that if the appellant fails to file the transcript in time the court, upon the respondent's complying with certain conditions, shall affirm the judgment. Under section 2049, giving the Supreme Court and Courts of Appeal authority to make rules for carrying into effect the provisions of sections 2047 and 2048, the Court of Appeals adopted rule 25 (122 S. W. viii), which requires a respondent to give the appellant five days' notice of his intention to file a motion to affirm the judgment, in order, among other things, that appellant may have an opportunity to dismiss the appeal himself and ask review by writ of error within the time limited by section 2056. Held, that where the respondent failed to comply with the requirements of rule 25, the court is not required, by section 2047, to affirm the judgment, since the requirements of the statute are not more mandatory than those of the rule.

2. COURTS (§ 80) — RULES — MATTER SUBJECT TO REGULATION — NOTICE OF MOTION FOR AFFIRMANCE.

It was within the power of the Court of Appeals to adopt rule 25 (122 S. W. viii), under the provisions of Rev. St. 1909, § 2049.

3. APPEAL AND ERROR (§ 14) — WRIT OF ERROR — PENDENCY OF APPEAL.

An appellant cannot have a writ of error while an appeal is pending in the same cause.

4. APPEAL AND ERROR (§ 14) — AFFIRMANCE ON MOTION — EFFECT.

Where the judgment is affirmed for the failure of appellant to file his appeal in time, he cannot thereafter have review by writ of error.

5. APPEAL AND ERROR (§ 776) — VOLUNTARY DISMISSAL — MOTION FOR AFFIRMANCE PENDING.

An appellant cannot dismiss his appeal after respondent has filed a motion to affirm the judgment for the failure of appellant to file his transcript in time.

6. APPEAL AND ERROR (§ 627) — DISMISSAL — DEFECTS IN PROCEEDINGS FOR REVIEW.

Where respondent, in his brief, requests that the appeal be dismissed under Court of Appeals rule 21 (122 S. W. vii) for the appellant's failure to file his transcript in time, the Court of Appeals may exercise a sound discretion in granting a request; and, where it appears that the appellant's right to proceed by writ of error is barred, and that during the last portion of the time allowed for writ of error he was precluded from proceeding in that manner, by the respondent's motion to affirm the judgment and the failure of the court to rule thereon, the request will not be granted.

7. MASTER AND SERVANT (§ 258) — INJURIES TO SERVANT — PETITION — NEGLIGENCE OF MASTER.

In an action by a groundman of a telephone company for injuries received by a tree falling upon him, a petition, which alleged the duty of the master to furnish plaintiff with reasonably safe tools and appliances and place to work, and to exercise ordinary care not to order plaintiff to perform his duties in a dangerous way, but to order the same to be done in a safer way, and that the defendant's foreman was negligent in performing certain acts when he knew, or should have known, that there was another safer way, and the defendant was negligent in furnishing an unsafe place for the plaintiff to work, sufficiently states a cause of action as relating to place as against demurrer, objection to evidence, or motion in arrest of judgment, even though the charge of negligence in selecting the dangerous method is defective for not alleging that it was not a reasonably safe method.

8. MASTER AND SERVANT (§ 286) — INJURIES TO SERVANT — SUFFICIENCY OF EVIDENCE — NEGLIGENCE OF MASTER.

In an action by a telephone groundman for injuries caused by a tree falling upon him, evidence held sufficient to require the submission of the question of the telephone company's negligence to the jury.

9. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

If the hazard involved in the conduct of the servant is one about which reasonable minds would differ, the question of contributory negligence is one for the jury.

10. MASTER AND SERVANT (§ 289) — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE — RELIANCE ON FOREMAN.

Where there is no open, glaring, and imminent danger, the supervision and presence of the master's foreman is a circumstance to be considered in determining whether the servant's contributory negligence is one for the jury, since the servant is warranted in relying somewhat upon the superior knowledge of the master.

11. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — SUFFICIENCY OF EVIDENCE — CONTRIBUTORY NEGLIGENCE.

In an action by a telephone groundman for injuries caused by a tree falling upon him, evidence held to require the submission to the jury of the question of the servant's contributory negligence in attempting to top the tree while standing upon a plank resting upon a bridge and a limb of the tree, where he acted under the orders of the company's foreman, even though he realized that there was some danger.

12. MASTER AND SERVANT (§ 226) — RISKS ASSUMED BY SERVANT — NEGLIGENCE OF MASTER.

The servant does not assume any risks incident to the master's negligence.

13. MASTER AND SERVANT (§ 213) — RISKS ASSUMED BY SERVANT — METHOD OF DOING WORK.

The right of the master to select the method for doing work is qualified by the requirement that he must exercise due care in making the selection, and the servant does not assume the risk of his negligence in that respect.

14. MASTER AND SERVANT (§ 190) — MASTER'S LIABILITY FOR INJURIES TO SERVANT — SAFE PLACE TO WORK — TEMPORARY PLACE.

Where employés of a telephone company were going from place to place to remove obstructions from the lines, and the foreman directed the men what to do, and where and how to do it, the company was liable for his failure to exercise reasonable care, even though the place of employment was shifting and temporary.

15. MASTER AND SERVANT (§ 287) — INJURIES TO SERVANT — QUESTION FOR JURY — FELLOW SERVANT.

Where a foreman instructed a telephone line gang to top a tree and pull the top onto a bridge, but did not give specific orders as to the details of the work, which was done under his immediate supervision, it could not be said, as a matter of law, that the acts of the men who pulled the tree over toward the bridge, and thereby injured the plaintiff, were the acts of his fellow servants, and not those of the foreman.

16. MASTER AND SERVANT (§ 297) — INJURIES TO SERVANT — INSTRUCTIONS — NEGLIGENCE OF FOREMAN.

Where the instructions given by the court required the jury to find that the plaintiff's injuries were a direct result of the negligent orders, given by the foreman, before the plaintiff could recover a verdict for him is a finding that the injuries were not the result of the negligence of the fellow servants.

17. MASTER AND SERVANT (§ 293) — INJURIES TO SERVANT — INSTRUCTIONS — METHOD OF WORK.

In an action for injuries to a telephone employé, an instruction which permitted recovery if the jury found that the foreman selected a more dangerous method of work or furnished an unsafe place constitutes reversible error, where none of the other instructions required the jury to find that the more dangerous method selected by the foreman was not a reasonably safe method.

18. MASTER AND SERVANT (§ 130) — INJURIES TO SERVANT — NEGLIGENCE OF MASTER — METHOD OF WORK.

The master is not liable to his servant for selecting the more dangerous, instead of the safer, method of performing the work, unless the more dangerous way is not a reasonably safe way.

19. TRIAL (§ 252) — INSTRUCTIONS — MISLEADING INSTRUCTIONS.

Where the defendant has introduced no evidence, an instruction, which permits recovery "unless the defendant has proved" certain facts connected with contributory negligence, is misleading.

Robertson, P. J., dissenting in part.

Appeal from Circuit Court, Barry County; Carr McNatt, Judge.

Action by W. M. Erwin against the Missouri & Kansas Telephone Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

J. S. Davis, of Cassville, G. M. Sebree, of Springfield, and Gleed, Hunt, Palmer & Gleed, of Kansas City, for appellant. Sizer & Kemp, of Monett, for respondent.

HENSON, Special Judge.

Judge FARRINGTON, having been of counsel in this cause, disqualified, and it was argued and submitted to Presiding Judge ROBERTSON, and Judge STURGIS. They were unable to agree upon the disposition to be made of the cause, whereupon CHARLES L. HENSON, of Mt. Vernon, was agreed upon and chosen as special judge herein. The cause was then reargued, and submitted to the court as thus constituted.

I. On the Motion to Affirm the Judgment.

We are confronted, at the very outset, with respondent's motion to affirm the judgment, because of appellant's failure to file, in this court, at least 15 days before the first day of the March term, 1912, of this court, a transcript of the record and proceedings of the circuit court or a certified copy of the record entry of the judgment appealed from, together with the order granting the appeal. Every reason set out in the motion relates to the one just stated, and it is unnecessary to repeat them. Accompanying the motion is a certified copy of records, made by the clerk of the court in which the appeal was granted, which we treat as a sufficient "certificate," as required by section 2047, R. S. Mo. 1909. The motion is also accompanied by a notice from respondent to the appellant of his intention to file said motion in this court on October 22, 1912, "or as soon thereafter as a hearing can be had." Copies of the motion and of the notice were...