Gettys v. Am. Car & Foundry Co.

• Decision Date: 05 April 1929
• Docket Number: No. 27599.,27599.
• Citation: 16 S.W.2d 85
• Parties: PHILLIP GETTYS v. AMERICAN CAR & FOUNDRY COMPANY and EDDIE JACKSON, Appellants.
• Court: Missouri Supreme Court

16 S.W.2d 85

PHILLIP GETTYS v. AMERICAN CAR & FOUNDRY COMPANY and EDDIE JACKSON, Appellants.

No. 27599.

Supreme Court of Missouri, Division Two.

April 5, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.

AFFIRMED.

Watts & Gentry for appellants; G.A. Orth of counsel.

(1) The court erred in refusing to give to the jury the instructions in the nature of demurrers to the evidence offered by appellants at the close of the plaintiff's evidence and at the close of all of the evidence. (a) There is no evidence in the record showing that American Car & Foundry Company was negligent in failing to provide sufficient working space for respondent and his associates. The standard of care is that which is used by other manufacturers in like business and under like circumstances, and respondent wholly failed to show that the company conducted its business any differently from other car manufacturers. Spindler v. Am. Exp. Co., 232 S.W. 690. (b) No recovery could be based upon the allegation of negligence in regard to the defective track upon which the reamer was run, for the reason that the trial court, by its Instruction 1, withdrew from the jury consideration of the facts relative to that allegation. (c) There is no evidence whatever in the record that at the time of respondent's injury appellant Jackson moved the reaming machine forcibly and violently towards plaintiff, and any finding by the jury that such a thing occurred would necessarily be based on speculation and conjecture, which, it has been held over and over, cannot be done. Marlowe v. Kilgen, 252 S.W. 424; Goransson v. Mfg. Co., 186 Mo. 300. (d) Respondent wholly failed to make a case on failure to warn, for the reason that the evidence fails to disclose a condition rendering a warning necessary, especially since respondent predicates his right to recover on account of a failure of one servant to warn another respecting the details of the work which was then being done. Burge v. Am. Car Co., 274 S.W. 842. (e) There is no evidence whatever in the record that tends to show that Jackson was incompetent; nor is there any evidence tending to prove the habitual carelessness alleged in respondent's petition; nor is there any evidence tending to show any causal connection between such alleged habitual carelessness and respondent's injury. Therefore, respondent failed to make a prima-facie case on this ground of negligence. Tucker v. Tel. Co., 132 Mo. App. 418; Allen v. Quercus Lbr. Co., 171 Mo. App. 492. (f) If respondent was injured as a result of any negligence on the part of appellant Jackson such negligence was that of a fellow-servant and not that of the master. Burge v. Am. Car Co., 274 S.W. 842; Boston v. Kroger Co., 7 S.W. (2d) 1009; Crawford v. Bolt & Nut Co., 278 S.W. 377; Van Bibber v. Swift & Co., 228 S.W. 69; 18 R.C.L. 735, sec. 209, and notes; Miller v. Water Power Co., 134 Wis. 316; Morris v. Alvis, 130 Va. 434; Pawling v. Haskins, 132 Pa. 617; Daves v. Ry. Co., 98 Cal. 19; Wickham v. Detroit U. Ry., 160 Mich. 277. (2) Under the circumstances shown by this record the trial court committed reversible error in refusing the withdrawal instructions requested by appellants concerning allegations of negligence which were not proved by the evidence in the case. Durham v. Awning Co., 297 S.W. 137. (3) The court erred in permitting respondent's counsel to make prejudicial and inflammatory remarks and to ask an improper question; and in refusing to discharge the jury on account of such remarks and question. State v. Burns, 286 Mo. 665; Lewellen v. Haynie, 287 S.W. 634; Monroe v. Railroad Co., 249 S.W. 646; Jackman v. Ry. Co., 206 S.W. 244; Williams v. Taxicab Co., 241 S.W. 972; Strond v. Doe Run Lead Co., 272 S.W. 1080; Wilkinson v. Wilkinson, 8 S.W. (2d) 77.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

(1) Appellants' peremptory instructions in the nature of demurrers to the evidence were properly refused. (a) The evidence shows, without room for cavil or dispute, that the defendant company was guilty of a flagrant breach of the personal, non-delegable duty which it owed to plaintiff to exercise ordinary care to furnish plaintiff a reasonably safe place to work and to keep such working place reasonably safe. Koerner v. Car Co., 209 Mo. 157; Bender v. Kroger Co., 310 Mo. 488; Johnson v. Corn Products Co., 6 S.W. (2d) 569; State ex rel. Duvall v. Ellison, 283 Mo. 542; Johnson v. Am. Car Co., 259 S.W. 444; Johnson v. Brick Co., 276 Mo. 42; Enloe v. Car Co., 240 Mo. 443; Schumacher v. Breweries Co., 247 Mo. 141; Dietzman v. Screw Co., 300 Mo. 196; Chulick v. Am. Car Co., 199 S.W. 438; Bequette v. Plate Glass Co., 200 Mo. App. 523; Bright v. Brick Co., 201 S.W. 641; Landcaster v. Enameling Co., 1 S.W. (2d) 238; Cook v. Cement Co., 214 Mo. App. 596; Comisky v. Heating Co., 219 S.W. 999; Todd v. Am. Exp. Co., 219 Mo. App. 405; White v. Montgomery-Ward & Co., 191 Mo. App. 268. (b) The defendant company flagrantly breached the duty which it owed to plaintiff, under the circumstances, to warn plaintiff — as was the established custom and practice in said defendant's shop — of the fact that the reaming machine, a dangerous and death-dealing device, was being moved so near him as to threaten his safety and render his working place a highly unsafe one; which duty defendant company could not shift or delegate so as to relieve itself of liability for its non-performance. Koerner v. Car Co., 209 Mo. 141; Bender v. Kroger Co., 310 Mo. 488; Johnson v. Corn Products Co., 6 S.W. (2d) 568; State ex rel. Duvall v. Ellison, 283 Mo. 532; Johnson v. Brick Co., 276 Mo. 42; Chulick v. Am. Car Co., 199 S.W. 437; Bequette v. Plate Glass Co., 200 Mo. App. 506; Landcaster v. Enameling Co., 1 S.W. (2d) 240; Cook v. Cement Co., 214 Mo. App. 609; White v. Montgomery-Ward & Co., 191 Mo. App. 271. (c) When the defendant company left it to defendant Jackson to see that plaintiff was warned of the near approach of the reamer, in accordance with the established custom and practice, and thus attempted to delegate to Jackson the absolute, personal duty resting upon the defendant company to timely give such warning, defendant Jackson thereby became, pro hac vice, the vice-principle and alter ego of the defendant company, rendering the company, as well as Jackson, liable for the gross negligence of the latter in failing to perform that duty. Koerner v. Car Co., 209 Mo. 141; Bender v. Kroger Co., 310 Mo. 498; Johnson v. Corn Products Co., 6 S.W. (2d) 570; Johnson v. Brick Co., 276 Mo. 51; Enloe v. Car Co., 240 Mo. 451; Bequette v. Plate Glass Co., 200 Mo. App. 506; Moore v. Railroad, 85 Mo. 593. (d) The work in which plaintiff was engaged was obviously one attended by danger, since plaintiff was required to work in a narrow, confined space in a car in which two of these dangerous reamers were in operation, and in which plaintiff's pneumatic hammer and another like hammer were in operation, making so much noise that one would not hear the approach of a reaming machine; and, because of such danger attending the work, it became the duty of the defendant company to see that special precautions were taken to guard against injuries to its employees engaged therein. Authorities under point (b). Also see: Knott v. Boiler Works, 299 Mo. 613; Stewart v. Laclede Gas Co., 241 S.W. 909; Kuhn v. Lusk, 281 Mo. 324; Henderson v. Stove Co., 197 S.W. 177; Jones v. Wood Works Co., 215 Mo. App. 142; Porter v. Railroad, 219 Mo. App. 29. (e) And could the negligence which resulted in plaintiff's injury be regarded as purely the negligence of a fellow servant (which respondent emphatically denies), the evidence amply sufficed to cast liability upon defendant company for negligently retaining in its employ a negligent and incompetent servant, after knowledge of such negligence and incompetency. Williams v. Ry. Co., 109 Mo. 475; Munoz v. Am. Car Co., 296 S.W. 228; Houston v. Am. Car Co., 282 S.W. 170; Grube v. Mo. Pac. Ry. Co., 98 Mo. 330; Brown v. Lumber Co., 202 Mo. App. 573; Burns v. Mfg. Co., 213 Mo. App. 640. (f) In passing upon the propriety of the action of the trial court in refusing these peremptory instructions the court will accept as true all evidence tending to sustain plaintiff's cause of action, no matter by whom offered, and accord plaintiff the benefit of every inference favorable to him which can, with any degree of propriety, be drawn from the entire record. Buesching v. Gas Co., 73 Mo. 219; Anderson v. Davis, 284 S.W. 450. (2) The trial court properly refused appellants' withdrawal Instructions A, B, C and D. (a) By each of these instructions it was sought to withdraw matters properly in the case and which the jury were entitled to consider. It would have served merely to mislead and confuse the jury, and would have been error prejudicial to plaintiff, to have given any of them. (b) A withdrawal instruction must be clear and unambiguous, and not leave the matters to be withdrawn in doubt, and must not, directly or by inference, include any matter properly in the case and which the jury is entitled to consider. Schulz v. Smercina, 1 S.W. (2d) 113; Latham v. Hosch, 207 Mo. App. 388; Am. Auto. Ins. Co. v. United Rys. Co., 200 Mo. App. 331; Komor v. Foundry Co., 300 S.W. 1030; Kinlen v. Railroad, 216 Mo. 145. (c) Error cannot be predicated upon the refusal of a proffered instruction unless the instruction is correct in all respects. Schulz v. Smercina, 1 S.W. (2d) 113; Roberson v. Biscuit Co., 285 S.W. 127; Higgins v. Patent Pulley Co., 240 S.W. 252; Sneed v. Hardware Co., 242 S.W. 696; Eisenberg v. Nelson, 247 S.W. 244; Hildman v. Am. Mfg. Co., 249 S.W. 99; Kilcoyne v. Metz, 258 S.W. 4. (d) In no event could the refusal of any of these instructions have been error affecting the merits of the action or the substantial rights of appellants. Beck v. Coal Co., 293 S.W. 450; Lehmer v. Smith, 284 S.W. 171; Packer v. Railway Co., 265 S.W. 123; Snyder v. W.U....