Funk v. Fulton Iron Works Company

• Citation: 277 S.W. 566,311 Mo. 77
• Decision Date: 25 November 1925
• Docket Number: 23980
• Parties: NEIL J. FUNK v. FULTON IRON WORKS COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

277 S.W. 566

311 Mo. 77

NEIL J. FUNK v. FULTON IRON WORKS COMPANY, Appellant

No. 23980

Supreme Court of Missouri

November 25, 1925

Appeal from St. Louis County Circuit Court; Hon. John W McElhinney, Judge.

Affirmed.

Holland Rutledge & Lashley and Robert L. Ailworth for appellant.

(1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence. (a) Because McLord, while pounding a pan with a ram and throwing said ram to the floor, even if negligent, was merely acting as a co-servant, for which act plaintiff cannot recover. The same employee may act at times as a vice-principal and at other times as a mere servant. And the question as to whether negligence on his part constitutes negligence on the part of the master is determined by the nature of the act involved. Fogarty v. Transfer Co., 180 Mo. 490; Harper v Railroad, 47 Mo. 580; Miller v. Railroad, 109 Mo. 356; Hawk v. Lumber Co., 166 Mo. 121; Bane v. Irwin, 172 Mo. 317; English v. Shoe Co., 145 Mo.App. 439; Rodgers v. Schiele, 148 Mo.App. 53; Radtke v. B. & B. Co., 229 Mo. 23; McIntyre v Tebbetts, 257 Mo. 117. (b) Because under the testimony there was an utter failure on the part of the respondent to establish that his injuries were due to negligence on the part of any other employee of the defendant. When McLord threw the ram in question he was guilty of no negligence. The law is well settled that a man does his entire duty if he exercises ordinary care and acts as a man of ordinary intelligence would act under the same or similar circumstances, and such a man is not required to foresee hazards which could not be reasonably anticipated by an ordinary person. Ward v. Dry Goods Co., 248 Mo. 348; Meifert v. Union Sand Co., 124 Mo.App. 49; Am. Brewing Assn. v. Talbot, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 620; Goodrich v. Railroad, 152 Mo. 222; Hysell v. Swift & Co., 78 Mo.App. 39; Loehring v. Westlake Const. Co., 94 S.W. 747. (c) Because under the testimony of the plaintiff he was guilty of negligence as a matter of law. The law is well settled that where a servant fails to exercise ordinary care for his own safety he cannot recover against the defendant. (d) Because respondent utterly failed to establish the one assignment of negligence made by him in his petition, to the effect that the injury complained of by him was caused by failure on the part of the appellant to furnish plaintiff a reasonably safe place to work. The testimony shows that the place furnished was reasonably safe. Hence respondent cannot recover upon an entirely different claim, to-wit, that another employee was guilty of an alleged negligent act. The law is well settled that the plaintiff is limited to the act or acts of negligence alleged in his petition, and can recover for none other. Chitty v. Railroad, 148 Mo. 64; State ex rel. v. Reynolds, 272 Mo. 597; Black v. Met. St. Ry. Co., 217 Mo. 673. (2) The court erred in giving Instruction 1, at the instance of the respondent. (a) Because the case should not have been submitted to the jury at all, for the reason above assigned. (b) Because said instruction does not properly state the matters that enter into a determination as to whether McLord was or was not at the time in question acting as a vice-principal. The instruction is general and states absolutely that if McLord had authority to direct and control the plaintiff, then he was a vice-principal, utterly ignoring the "dual capacity" rule. The law is well settled in this State that the same man may at one time act as a vice-principal, and at another time as a fellow servant. Authorities above.

A. J. Haverstick for respondent.

(1) McLord's exclusive duties were to supervise operations and direct the master's workmen, with no other duties assigned to him, by the master, or to be performed by him. His act, when he injured the plaintiff, was the act of the master, and not an act of a common servant, and the master is liable. Dayhorsh v. Ry. Co., 103 Mo. 570; Bien v. Transit Co., 108 Mo.App. 412; Strothers v. Milling Co., 169 S.W. 43; Loretta v. Columbia Can Co., 246 S.W. 998; Russ v. Ry. Co., 112 Mo. 45; Hutson v. Ry. Co., 50 Mo.App. 303; Strode v. Conkey, 105 Mo.App. 15; Donnelly v. Aida M. Co., 103 Mo.App. 351; Miller v. Ry. Co., 109 Mo. 355; Fogarty v. Transfer Co., 180 Mo. 501. (2) As foreman, McLord's exclusive duties were to supervise operations, and direct the master's workmen, with no other duties assigned to him, by the master, or to be performed by him; and where he of his own volition did a manual act, and in performing it hurt a co-worker, it was his act as a foreman, and not as a fellow servant, and the master is liable. Johnson v. American C. & F. Co., 259 S.W. 442; Strother v. Kansas City M. Co., 269 S.W. 43; McCall v. Nugent, 236 S.W. 328; Radtke v. Basket Co., 229 Mo. 15; McIntyre v. Tebbetts, 165 S.W. 761; Moore v. Ry. Co., 85 Mo. 588. (3) Where a foreman's exclusive duties are to supervise and direct the master's workmen, with no other duties assigned to him, or to be performed by him, there is no logical or reasonable distinction between his directing the act to be performed, and in him performing the act to be performed. Hutson v. Ry. Co., 50 Mo.App. 300; Dayhorsh v. Ry. Co., 103 Mo. 576; Miller v. Ry. Co., 109 Mo. 356; Bien v. Transit Co., 108 Mo.App. 412; Donnelly v. Aida M. Co., 103 Mo.App. 351.

Ragland, J. All concur, except Woodson J., absent, and Atwood J., not sitting.

OPINION

RAGLAND

This case was first heard and submitted in Division One, following which an opinion was prepared. While that opinion failed of adoption after the transfer of the case to Court in Banc it sets forth the facts with admirable clearness and brevity. In stating the case therefore we adopt for the most part the statement of facts as contained in the divisional opinion, merely adding thereto such other evidentiary matters as in view of the conclusions finally reached are deemed pertinent.

"The issues, such as they are, in this case, can be fairly gathered from the following excerpts from the pleadings, and a drawing found in respondent's brief, which for illustration we insert here.

[SEE ILLUSTRATION IN ORIGINAL]

"Defendant is a manufacturing corporation in St. Louis County, Missouri. It manufactured and put together sugar-cane mills and crushers, with other heavy iron products. In the petition the plaintiff says:

"'That the defendant's said manufacturing plant is equipped with numerous, ponderous and heavy machines, cranes and hoisting devices used in the manufacture of the aforesaid mills, crushers and engines.

"'Plaintiff states that on the 10th day of December, 1920, and long prior thereto, he was in the employ of the defendant, and that on the said 10th day of December, 1920, he was engaged as a machinist, with an erection crew of men, in the erection of a large and ponderous sugar-cane mill and crusher in the defendant's said plant, and under the orders and directions of the defendant's foreman in charge of said work.

"'That at the time hereinafter referred to plaintiff with other mechanics in the employ of defendant was engaged in placing in position and securing a large and heavy bent plate or apron of a sugar-cane crusher mill.

"'That whilst the plaintiff was in the discharge of the duties of his employment and in the exercise of due care and caution for his own safety, and engaged at work under and beneath said heavy bent plate in order to bolt and secure the same in position, and whilst plaintiff was so engaged, defendant carelessly and negligently suffered and permitted a large and heavy iron ram to be thrown and fall upon plaintiff's left hand, crushing and bruising the tissue, bones, tendons and other parts of all of the fingers of the plaintiff's left hand.

"'Plaintiff state that his said injuries and loss is directly due and was proximately caused by the negligent failure of the defendant company to provide and maintain plaintiff with a safe place of work, whilst he was under and beneath said large bent plate and engaged in bolting and securing the same in position, with his upward view obstructed, in that the defendant failed to prevent said heavy iron ram from falling upon plaintiff's left hand.'

"The answer is short, and reads thus:

"'Comes now the defendant in the above-entitled cause and leave of court having been first had and obtained, files this, its amended answer to plaintiff's petition filed herein. And for its amended answer, defendant admits that it is and at the times referred to in plaintiff's petition was a corporation duly organized according to law, engaged in the manufacturing business and operating a plant in the County of St. Louis, in the State of Missouri, and that, on the days referred to in plaintiff's petition, the plaintiff was employed as a servant of the defendant in said plant and was engaged in the line of his duty in assisting in the erection of a certain machine, and that several other employees of defendant were also engaged in said work at said time and place, and that whilst plaintiff was so engaged a piece of iron or steel fell upon plaintiff's hand and inflicted some injury upon him. And defendant denies all of the allegations in said petition contained.

"'Further answering, this defendant says that whatever injuries were sustained by the plaintiff at said time and place were caused by his own negligence directly contributing thereto, in this to-wit, that while plaintiff was engaged in working under a piece of machinery which completely obscured him from the view of other servants engaged in said work, he negligently dropped a nut from a bolt which he was inserting in said machinery and thereupon negligently and, without giving any warning to the other...