Hagan v. Gibson Mining Company
| Decision Date | 08 June 1908 |
| Citation | 111 S.W. 608,131 Mo.App. 386 |
| Parties | CHARLES HAGAN, Respondent, v. GIBSON MINING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
AFFIRMED.
Judgment affirmed.
A. E Spencer for appellant.
(1) The plaintiff and Votow were fellow-servants as to the work in which they were engaged in connection with the platform, and a verdict for defendant should have been instructed. "It is the character of the act itself that determines the relation of the actor to injured servant." Stephens v. Lumber Co., 110 Mo.App. 398; Fogarty v. Transfer Co., 180 Mo. 490; Rigsby v. Oil Well Supply Co., 115 Mo.App. 297. (2) The instruction for plaintiff is erroneous. (a) Because of its unnecessary length it could only confuse the jury. Bane v. Irwin, 172 Mo. 315. (b) It declares that if Votow was defendant's foreman and as such had immediate supervision and control over plaintiff with authority to control and direct plaintiff's work, he was defendant's vice-principal and not plaintiff's fellow-servant. This is wrong, as applied to this case because it ignores the question whether the acts of Votow were those of a fellow-servant, or the exercise of control as a vice-principal, and improperly makes the test the authority of Votow over plaintiff--his rank, rather than the character of the act in which he was engaged. See authorities under point 1. (3) The case sought to be made by plaintiff involves the negligent leaving of a hole in the platform, a complaint thereof by plaintiff to defendant's foreman, the latter's assurance to plaintiff that he could work with safety, and a promise also to cover the hole with boards, and plaintiff's reliance thereon. Without the complaint and promise the risk would be one clearly assumed by plaintiff. Mathis v. Stock Yards Co., 185 Mo. 434.
R. A Mooneyham, H. E. Thompson and C. O. Thompson for respondent.
(1) A shift boss having direction and control of the work is a vice-principal and not a fellow-servant. Hunt v. Desloge Lead Co., 104 Mo.App. 377; Fox v. Dold Packing Co., 96 Mo.App. 173; Strode v. Conkey, 105 Mo.App. 12; Railway v. Meeker (Ill.), 82 N.E. 202; Kain v. Babcock (N. J.), 67 A. 1014; Hollweg v. Telephone Co., 195 Mo. 149; Fogerty v. Transit Co., 180 Mo. 490; Bane v. Irwin et al., 172 Mo. 306; Blue v. Transit Co., 108 Mo.App. 399; Lore v. Mfg. Co., 160 Mo. 608; Cole v. Transit Co., 183 Mo. 92; Carter v. Baldwin, 107 Mo.App. 217. In Missouri the power of superintendence and control has often been taken as the true criterion. Hinchliff v. Robinson, 118 Ill.App. 450; Grattis v. Railway, 153 Mo. 380; Miller v. Railway, 109 Mo. 350; Hanok v. Lumber Co., 166 Mo. 121; Bane v. Irwin, 172 Mo. 306; Dien v. Transit Co., 108 Mo.App. 399; Rigsby v. Oil Well Co., 115 Mo.App. 314; Edge v. Railway, 206 Mo. 471; Citrone v. Engineering Co., 113 A.D. 518; Telephone Co. v. Schulz, 121 Ill.App. 573; Whaley v. Coleman, 113 Mo.App. 594; Fauts v. Swift, 113 Mo.App. 532; Bates-Rogers Con. Co. v. Dunn, 93 S.W. 1032; Andrecsik v. Tube Co., N. J. Err. & App., 63 A. 719; Antletc v. Smith, 97 Minn. 217, 106 N.W. 517; Burch v. Southern Pacific Co., 145 F. 443; Hubert v. Glucose Co., 109 N.W. 475; Oden Coal Co. v. Tadlock, 119 Ill.App. 310. (2) The instructions for plaintiff correctly declare the law and are not open to the objections which the defendant makes. (3) The case made out by plaintiff involves the negligent discharge of the steam into the water beneath the platform. Abbott v. Min. Co., 112 Mo.App. 550; Carter v. Baldwin, 107 Mo.App. 217; Epperson v. Postal Tel. Co., 155 Mo. 346; Fisher v. Central Lead Co., 156 Mo. 429; Palmer v. Telephone Co., 91 Mo.App. 106; Charlton v. Railway, 200 Mo. 436; Campbell v. Railway, 175 Mo. 161; Dale v. Hill-O'Meara Con. Co., 108 Mo.App. 97. (4) Jurymen may, without any agreement or thought of adopting the quotient as a verdict, set down in a column the amount each juror is in favor of awarding. Add this column and divide the total by twelve and afterwards agree that the quotient shall be their verdict. Kolb v. St. Louis Transit Co., 102 Mo.App. 143. (5) There was nothing improper in the manner of reaching the verdict in this case as there is no evidence that the jurors signing the verdict agreed in advance that the quotient should be their verdict. Moore v. Railway, 100 Mo.App. 665; Kolb v. Transit Co., 102 Mo.App. 143; Jobe's Administrator v. Weaver, 77 Mo.App. 671; 2 Thompson on Trials, sec. 2602 and authorities cited; Fields v. Railway, 80 Mo.App. 608.
Plaintiff, a young man about twenty-one years of age, suffered personal injury by having one of his legs scalded while engaged in the service of defendant. He charged the injury to defendant's negligence and brought this action therefor. He recovered judgment in the trial court.
The defendant is a mining company and plaintiff and his foreman, named Votow, were engaged at work at the bottom of a shaft. They had constructed a platform covered with boards which stood some two feet or more above the bottom of the shaft. Drilling was being done with a steam drill, the exhaust for which was under the platform into water about two feet in depth. The water became very hot and steam constantly arose. The injury happened to plaintiff about three o'clock in the afternoon. About eleven o'clock in the forenoon of that day plaintiff, who had been working only four days, had complained of the condition of the platform and about the steam and hot water. Votow assured him he could work on in safety. They ceased to drill and Votow undertook to strengthen the platform by taking up some pine boards and replacing them with oak. He had plaintiff get some oak boards from out on the surface. They had been cut too short and thereby left a hole near two feet square on one side of the platform. Plaintiff assisted in placing them. Votow then ordered plaintiff to gather up a lot of tools and place them in a pump seat on the north side of the shaft. These tools were scattered about the drift. In placing them where directed it was necessary for plaintiff to pass over the platform, which was wet and slippery from the steam rising through and about it. Votow though having directed the gathering of the tools and having promised to cover the hole in the platform, failed to do so and on plaintiff's crossing over with tools in his hands, he slipped, his leg going through the hole into the hot water, and receiving a painful burn.
The criticism made of the instruction given for plaintiff as applicable to the evidence of the case, we regard as altogether without merit. Every issue in the case was properly and clearly set forth so as to call for the jury's determination in such way as left no room for them to misunderstand. The familiar duty of the defendant to furnish a safe place for plaintiff to work, was stated. The hypothesis of the foreman's promise to plaintiff to protect the place where he fell, and his reliance thereon, and his own proper care, are all plainly set down. The questions of danger, of notice to the foreman of plaintiff's knowledge of the defect in connection with the promise to fix it, are all stated to the jury, and we do not find any substantial objection. But aside from this, the defendant was liberally treated by the court and every phase of defense was embodied in instructions which it obtained. To say that the jury did not fully and fairly understand every issue in the case would be to contradict the record.
The point is, however, made that Votow was not a vice-principal but that he was rather a fellow-servant. This was also submitted to the jury on the evidence as to his duties. It was shown that he had authority over plaintiff and the work they were performing. In other words he was the foreman with entire supervision and direction of the work. We do...
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