Guthrie v. Gillespie

• Decision Date: 18 May 1928
• Docket Number: No. 26665.,26665.
• Citation: 6 S.W.2d 886
• Parties: SAMPSON GUTHRIE, Appellant, v. WILLIAM W. GILLESPIE.
• Court: Missouri Supreme Court

6 S.W.2d 886

SAMPSON GUTHRIE, Appellant, v. WILLIAM W. GILLESPIE.

No. 26665.

Supreme Court of Missouri, Division One.

May 18, 1928.

Appeal from Andrew Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

Charles E. Gibbany, K.D. Cross and J.W. McKnight for appellant.

(1) It is the duty of the master to exercise reasonable care to furnish the servant with reasonably safe appliances and with a reasonably safe place to work. Sec. 6802, R.S. 1919; Wuellner v. Planing Mill Co., 303 Mo. 38; 39 C.J. 602; Prapuolenis v. Constr. Co., 279 Mo. 358; 39 C.J. 308. The duty of the master is to furnish a servant with reasonably safe appliances and place to work. Where the statute imposes a duty to provide safety appliances of any kind for protection of persons from injury, the failure to perform the duty imposed is negligence per se. Prapuolenis v. Constr. Co., 279 Mo. 358; Stafford v. Adams, 113 Mo. App. 721; Curtie v. Koch, 282 S.W. 1045. (2) Where the defect in an appliance is shown to be structural and is of such character as to render it unsafe, it may be inferred that the employer was aware of the defects and an employee who has been injured by such appliance need not show that the master knew that it was defective. Cody v. Lusk, 187 Mo. App. 327; Koerner v. St. Louis Car Co., 209 Mo. 158; 26 Cyc. 1144; 39 C.J. 434; Hancox v. Craddock-Terry Co., 229 S.W. 271. (3) In an action for injuries to an employee working on a scaffold which was required by R.S. 1919, Section 6802, to be well and safely supported so as to insure the safety of persons working thereon, in the absence of exculpatory showing by the employer, the fall of the scaffold on which his employees are working is prima-facie evidence of his negligence and a violation of the statute. Prapuolenis v. Constr. Co., 279 Mo. 358; Bennett v. Tractor Co., 209 Mo. App. 619; Curtie v. Koch, 282 S.W. 1045. (4) Although plaintiff was working together in the same kind of work with witness Swope when the scaffold on which they were working gave way and injured the plaintiff, Swope, who was a carpenter, while plaintiff was a common laborer, had constructed the scaffold before this particular work began and plaintiff had nothing to do with the construction of the scaffold, and the plaintiff and Swope were not fellow-servants as to the work of constructing the scaffold. Prapuolenis v. Constr. Co., 279 Mo. 358; Gaines v. Pierce, 264 S.W. (Mo. App.) 94. (5) Where the petition charges negligence on the part of the master, the injured employee is not bound to plead and prove that he was not injured by the negligence of a fellow-servant; that being a proper matter of affirmative defense if the master relies on it. Bennett v. Tractor Co., 209 Mo. App. 619; Meily v. Railroad, 215 Mo. 587; Fisher v. Lead Co., 156 Mo. 479; Watts v. Cotton Mills, 78 S.E. 798; Bjorma v. Redwood Co., 38 Pac. 451; Chicago City Ry. Co. v. Leach, 100 Am. St. 216; 39 C.J. 939. On the other hand, where the negligence is charged as that of a servant, or it appears affirmatively on the face of the pleading that the act or omission causing the injury was that of a fellow-servant, or where under the facts stated the injury might have resulted from the negligence of a fellow-servant, plaintiff must allege and prove that he and such servant were not fellow-servants, or that defendant was negligent in employing such servant or retaining him after he knew or ought to have known that he was incompetent. 39 C.J. 939; Higgins v. Mo. Pac. Ry. Co., 104 Mo. 413; Shaw v. Constr. Co., 102 Mo. App. 666; McGowan v. Railroad, 61 Mo. 528; Blessing v. Railroad, 77 Mo. 410; Sheehan v. Prosser, 55 Mo. App. 569; Ryan v. Board of Publication, 199 S.W. 1030; Brown v. Ry. Co., 67 Mo. 122. The cases which hold that the burden of proof is upon the plaintiff to show the absence of the relationship of fellow-servant are those in which it appears from the pleadings that the act was done by another servant, and which from the facts stated in the pleadings make it necessary to negative in the pleadings the relationship of fellow-servant or the defense of the fellow-servant rule, or are cases in those states where the rules of pleading require that the plaintiff, after stating his cause of action, negative the defense of assumption of risk and of fellow-servant. Cases cited above; 39 C.J. 998; Meily v. Railroad, 215 Mo. 587. (6) Since the burden of proof was upon the defendant to establish the relationship of fellow-servant and since the facts constituting that relationship, if such existed, were within the knowledge of the defendant, the defendant was not in a position to invoke the rule that a fact within the knowledge of the opposite party must be established by him. Mo. Gas & Elec. Co. v. Milling Co., 279 S.W. 727; Swinhart v. Ry. Co., 207 Mo. 434; McGinnis v. Ry. Co., 195 Mo. App. 390. Ordinarily the failure to call as a witness one who is equally within the control of both parties will be no ground for any presumption against either party and the unexplained silence of a party, though it in some cases adds force to the evidence of his adversary, is not sufficient to supply independent evidence of a fact which is wholly unproved by the other evidence. Diel v. Mo. Pac. Ry. Co., 37 Mo. App. 454; 22 Am. & Eng. Ency. Law, 1260; 9 Ency. Evidence, 971; State ex rel. v. Ellison, 268 Mo. 239. A presumption itself is not evidence. It is not a thing to be overcome by evidence in the sense that it of itself adds anything to the strength of the evidence of the party invoking it. State ex rel. v. Ellison, 187 S.W. 26. It would seem that the unfavorable inferences deducible from plaintiff's unexplained failure to testify under the later rulings of this court are limited to cases where there is an imputation of fraud or inequitable conduct on the part of the plaintiff. Lampart v. Ins. Co., 199 S.W. 1020; Lampart v. Life & Fire Assur. Corp., 197 S.W. 100; Houghton v. Jacobs, 246 S.W. 285.

J.W. Roberts, E.P. Stapleton and Cook & Cummins for respondent.

(1) When a trial judge is dissatisfied with the weight of the evidence in a cause, and feels that it is insufficient to sustain a verdict, it is not only the right and privilege, but his duty, to set the verdict aside and grant a new trial. Sec. 1453, R.S. 1919; Scott v. Railway Co., 168 Mo. App. 527; Hurley v. Kennally, 186 Mo. 225; State v. Scott, 161 Mo. 487; Rodan v. Transit Co., 207 Mo. 392. (2) It was error against the defendant for the trial court to refuse defendant's refused Instruction Number 3. This instruction was to the effect that even if Swope improperly constructed the scaffold by the use of one small nail where he should have used a larger one, yet if that defect was of such a character that ordinary care and prudence on the part of the defendant would not have discovered, then the defendant would not be liable. The defect complained of here is that Swope drove an eight-penny nail where he should have driven a spike. 18 R.C.L. 562; 20 R.C.L. 34, par. 28; 22 Am. Cas. 1002; Hays v. Ice Co., 282 Mo. 454; Poynter v. Const. Co., 265 S.W. 841; Oglesby v. Railway, 150 Mo. 137. (3) Defendant's refused Instruction 4 should have been given. By this instruction we sought to have the jury told that the burden of proof was on plaintiff to show that he and Swope were not fellow-servants in the erection of the scaffold. Sheehan v. Prosser, 55 Mo. App. 574; Shaw v. Construction Co., 102 Mo. App. 666; McGowan v. Railroad, 61 Mo. 528; Blessing v. Railroad, 77 Mo. 410; Rayan v. Board of Publication, 199 S.W. 1030. (4) If the plaintiff was employed to and did assist Swope in the construction of the scaffold upon which they were to work, then he and Swope were fellow-servants in that work and he cannot recover. Bone v. Railroad, 95 Mo. 268; Williams v. Ransom, 234 Mo. 55; Steffenson v. Roehr Co., 136 Mo. App. 225; Forbes v. Dunnavant, 198 Mo. 193; Prapuolenis v. Construction Co., 279 Mo. 358; Bennett v. Tractor Co., 209 Mo. App. 619.

ELLISON, C.

This is an action for damages for personal injuries — a master-and-servant case. The plaintiff (appellant) had a verdict below for $9000, which, on defendant's motion for a new trial, was set aside as being against the weight of the evidence.

The ultimate charge in the appellant's petition is that the respondent failed to provide him with a safe place of work. The gist of his case, on the facts, is that he was assigned to work on a scaffold furnished by the respondent, in repairing the roof of a house. Owing to structural defects the scaffold collapsed and appellant fell to the ground breaking his leg and sustaining serious, painful and permanent injuries.

The respondent's defense was that he did not furnish the scaffold; that appellant and another workman named Swope were employed as fellow-servants to erect the scaffold, as well as to fix the roof; that it was their duty to make their own place of work; that respondent supplied them with good materials, but they failed securely to fasten together the supporting structure, in consequence of which it broke. Hence it is claimed appellant's injuries were the result of his own negligence and that of his fellow-servant, or the negligence of one of them. It was not disputed that the part of the scaffold which gave way was nailed together by Swope. The controverted questions of fact were whether the appellant had been hired by respondent to work on the job before the scaffold was completed, and whether it was any part of his duty to assist in the erection of the scaffold.

The appellant was a general day laborer, about sixty years old, at the time he received his injuries in January, 1924. The respondent was a retired farmer, about seventy-eight years old. He made it a business, in a way, to buy and remodel small residence properties in Albany in Gentry County. On the occasion which figures in this case he was repairing a house, the main part of which was about sixteen feet square and about a story and a half...