Fulwider v. Trenton Gas, Light & Power Co.

• Decision Date: 25 February 1909
• Citation: 116 S.W. 508,216 Mo. 582
• Parties: FULWIDER et al. v. TRENTON GAS, LIGHT & POWER CO. et al.
• Court: Missouri Supreme Court

116 S.W. 508

216 Mo. 582

FULWIDER et al. v. TRENTON GAS, LIGHT & POWER CO. et al.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

1. PARTIES (§ 75) — DEFECTS — MISJOINDER— MODE OF OBJECTION.

Where the petition does not show on its face a misjoinder of parties rendering it open to demurrer as provided by Rev. St. 1899, § 598 (Ann. St. 1906, p. 624), the question can be raised by answer, but, where the petition shows a misjoinder, it can only be raised by demurrer.

2. PARTIES (§ 92) — DEFECTS — WAIVER — IMPROPER METHOD OF OBJECTION.

Where an alleged misjoinder of defendants appearing on the face of the petition was not raised by demurrer, the defect was waived by attempting to raise it by answer.

3. TORTS (§ 22)—JOINT TORT-FEASORS—LIABILITY.

Joint tort-feasors are both jointly and severably liable, and either or all may be sued.

4. MASTER AND SERVANT (§ 257)—INJURIES—ACTIONS—PLEADING—RELATION OF PARTIES.

A petition in a servant's death action, which alleged that defendants ran and controlled a power plant, and that decedent was in their employment, and was killed through their negligence, was not demurrable in failing to allege how defendants' interests were united in the operation of the plant.

5. DEATH (§ 26)—RIGHT OF ACTION—DEFENSES—PENDENCY OF OTHER ACTION.

The statute giving a decedent's widow the right of action for his death within six months thereafter, and giving his minor children the right of action therefor during the next six months, the pendency of a suit by the widow would be matter to be pleaded in abatement of a subsequent suit by the children.

6. DEATH (§ 58)—ACTIONS—PRESUMPTIONS— EXISTENCE OF PRIOR ACTION.

The statute giving the widow the right of action for a decedent's wrongful death within six months thereafter, and giving the minor children the right of action during the next six months, in absence of a showing either way, it could not be presumed, in an action by the children, that the widow had appropriated the action.

7. EVIDENCE (§ 92)—BURDEN OF PROOF—NEGATIVE AVERMENTS—KNOWLEDGE OF FACTS.

Where the means of proof of negative averments essential to a cause of action are peculiarly within defendants' knowledge, such averments are taken as true, unless denied by defendant, but, if the parties are equally able to prove such averments, the burden of doing so is on plaintiff.

8. EVIDENCE (§ 92)—BURDEN OF PROOF—NEGATIVE AVERMENTS.

An allegation in an action by minor children for a servant's death that the widow had not sued on the cause of action being a negative averment, and the existence of a prior suit being peculiarly within defendant's knowledge, plaintiffs were not bound to prove the allegation.

9. APPEAL AND ERROR (§ 716) — REVIEW — REASONS FOR DECISIONS—DIRECTION OF VERDICT.

Where the record does not show the grounds of a mandatory instruction given for defendant, if the instruction is proper upon the whole case, reasons for the instructions assigned on appeal, or existing and not assigned, will not be considered.

10. APPEAL AND ERROR (§ 171)—PROCEEDINGS BELOW —CHANGING THEORY ON APPEAL.

Plaintiff cannot urge error on appeal based on an entirely different theory from that embodied in his pleadings below.

11. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—PROOF—VARIANCE.

In order to recover for a servant's death on the ground that the master was negligent in not warning an inexperienced servant of hidden dangers, negligence in that respect must be alleged, and recovery on that ground was not permissible where the negligence alleged was in not guarding machinery and furnishing a safe place of work.

12. MASTER AND SERVANT (§ 153)—INJURIES TO SERVANT—DUTY TO WARN.

Where it did not appear that a servant was inexperienced, or that he wanted or needed any instruction in the method of stopping the engine, in which work he was engaged when injured, was not peculiar, and the master did not know of his ignorance as to the manner of stopping it, there could be no recovery for his injuries under the rule requiring the master to warn an inexperienced servant.

13. APPEAL AND ERROR (§ 171) — PRESENTATION BELOW — CHANGING THEORY ON APPEAL.

Where the petition specifically alleged that the place in which the servant worked was unsafe because the floor was uneven, with timbers nailed across it, and because it was covered with grease, proof of a hole covered by an unsafe foot plank where decedent stood may not be urged on appeal to sustain the allegation of negligence.

14. MASTER AND SERVANT (§ 129)—INJURIES—PROXIMATE CAUSE—FAILURE TO GUARD MACHINERY.

Unless a master's negligent failure to guard dangerous machinery as specified proximately caused a servant's injuries, the master is not liable.

15. MASTER AND SERVANT (§ 129)—INJURIES—PROXIMATE CAUSE.

If a torch used by a servant in his work afforded sufficient light to enable him to safely perform his work, failure to furnish other lights was not the proximate cause of injuries sustained in doing the work.

16. MASTER AND SERVANT (§ 236)—INJURIES —CONTRIBUTORY NEGLIGENCE.

If the lights were insufficient to enable a lighting plant employé to safely perform his work in stopping a dynamo engine wheel, after he had shut off steam from the dynamo, which necessarily put out the electric lights, in the plant he should have lit the gaslights, which were provided for such an emergency.

17. MASTER AND SERVANT (§ 233)—INJURIES —CONTRIBUTORY NEGLIGENCE.

Where a servant's death was caused by his own negligence in assuming an obviously dangerous position, no recovery could be had therefor.

Appeal from Circuit Court, Grundy County; G. W. Wanamaker, Judge.

Action by Bertha May Fulwider and others, minors, by Homer Hall, their curator, against the Trenton Gas, Light & Power Company and others. From a judgment for defendants on a directed verdict, plaintiffs appeal. Affirmed.

Geo. A. Adams and Hall & Hall, for appellants. E. M. Harber, A. G. Knight and H. G. Smith, for respondents.

LAMM, P. J.

Suing for the wrongful death of their father and putting in their evidence in that behalf, an adverse verdict was coerced by an instruction in the nature of a demurrer at the close of their case, and plaintiffs appeal.

The petition counts on two theories. One is that defendant corporation, Fulkerson, and Carnes were running and operating an electric light, gas and power plant in the city of Trenton, and used in their said business certain dangerous machinery, consisting of engines, belts, drums, shaftings, gearing, etc., which machinery was negligently left unfenced, whereby J. E. Fulwider, father of plaintiffs and an employé of defendants, was killed; that is to say, by the first theory of the case a duty was raised to fence dangerous machinery by statute, and that there was an actionable breach of this duty resulting in Mr. Fulwider's death. The other theory is that defendants owed a common-law duty to Mr. Fulwider to furnish him a reasonably safe place in which to work and breached such duty, in that they (to quote from the petition) "failed and neglected to furnish their said employés a reasonably safe and suitable place in which to work, and carelessly and negligently suffered and permitted the floors in the building in which said machinery and other appliances above mentioned were situated, and where their said employés while engaged in running and operating the same had to work, to become rough and uneven with boards and timbers nailed across and over the same, and permitted the same to become and remain covered with grease, and to become and remain unsafe, and failed and neglected, carelessly and negligently, to furnish sufficient lights so as to enable their said employés to perform their said work with reasonable safety." The petition further charges as follows: "Plaintiffs further state that on said 27th day of January, 1904, their said father, J. E. Fulwider, was in the employ of the defendants, assisting in running, operating, and working about said plant and establishment and the said shafting, belts, gearing, drums, engines, and other machinery and appliances therein, and that while he was so engaged and employed in the discharge and performance of his duties, and without fault or negligence on his part, but by reason of the said failure and neglect of the defendants to safely and securely guard and protect the said engines, belts, shafting, drums, and other machinery and appliances as aforesaid, and by reason of the said failure and neglect of the said defendants to furnish their said deceased employés a reasonably safe and suitable place in which to work and sufficient lamps and lights to enable him to see in doing his said work, the said J. E. Fulwider was unable to see so as to discharge his said duties in safety, and slipped or stumbled upon said rough, uneven, and greasy boards and floor, and thereby and by reason thereof and by reason of the said failure and neglect of defendants to properly guard, inclose, and protect said machinery, engines, belts, shafting, gearing, drums, and appliances as aforesaid, he fell or was thrown against and onto one of the said exposed and unguarded belts and gearing of said plant and establishment, and was dragged or drawn into the said machinery, wheels, drums, and gearing of said plant and establishment, and was thereby crushed, mangled, and killed." Two answers were filed, one by the corporation and the other by the individual defendants. These answers make an issue on the appointment of Homer Hall as curator of the minor plaintiffs, and allege that the probate court making it had no jurisdiction to do so. These features are not germane to any error assigned, and may be laid on the shelf. A plea of contributory negligence is common to both answers. There is, too, a common averment of assumption of risks and a general denial. The answer of the individual defendants is more than a general plea of contributory negligence. It specifies a bundle of acts which in the...