Headdy v. Wright Tie Co.

• Decision Date: 12 May 1924
• Docket Number: No. 3616.,3616.
• Citation: 262 S.W. 447
• Parties: HEADDY v. WRIGHT TIE CO.
• Court: Missouri Court of Appeals

262 S.W. 447

HEADDY v. WRIGHT TIE CO.

No. 3616.

Springfield Court of Appeals. Missouri.

May 12, 1924.

Appeal from Circuit Court, Dent County; W. E. Barton, Judge.

Action by Alden Headdy against the Wright Tie Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cope & Cope, of Salem, for appellant. Earl E. Roberts, of Steelville, and McGee & Bennett, of Salem, for respondent.

BRADLEY, J.

This is an action for damages for personal injury. The cause was tried before the court and a jury. Plaintiff recovered, and defendant appealed.

Two of plaintiff's toes were severed, so he alleges, by a large heavy switch tie falling on his foot. He alleges that at the time of his injury he was in the employ of defendant, and was engaged with others in loading ties into a box car, and that one Orville Eaton, employed by defendant, was a member of the crew; that Eaton was of a nervous disposition and had recently returned from the insane asylum; that Eaton was incompetent, negligent, and careless, and an improper and dangerous person to intrust with handling heavy timbers with other men, which was known to defendant or by the exercise of ordinary care could have been known or discovered before plaintiff was injured; that defendant carelessly and negligently employed Eaton after having knowledge of his incompetency, or could have known of such incompetency by the exercise of ordinary care. Plaintiff further alleges that defendant continued to carelessly and negligently keep Eaton in its employ after it knew or by the exercise of ordinary care could have known of his incompetency, and that on the ______ day of May, 1922, while plaintiff was in the discharge of his duty, Eaton carelessly and negligently dropped a heavy tie on plaintiff's foot and severed two of his toes.

Defendant answered by a general denial, and pleaded, further, that at the time plaintiff was injured the loading crew was not in its employ, but was in the employ of an independent contractor ; and, further, that plaintiff knew all the facts regarding the competency of Eaton, and that notwithstanding this knowledge plaintiff continued to work with Eaton. Defendant further alleges that the injury sustained by plaintiff was the result of negligence on the part of others of the crew, and not Eaton. The reply is a general denial.

Defendant assigns error (1) on the failure to sustain its demurrer to the evidence at the close of the case; (2) on denying a continuance; (3) on the instructions given and refused; (4) on the admission and exclusion of evidence; (5) on the petition; and (6) on the amount of the verdict.

The demurrer is bottomed upon four contentions: (1) That there is no substantial evidence tending to show that defendant is guilty of any negligence as charged; (2) that plaintiff and Eaton, and in fact the whole loading crew, were, at the time of plaintiff's injury, in the employ of independent contractor, and were not in the employ of defendant; (3) that plaintiff's injury was caused by his own negligence and he cannot recover; and (4) that plaintiff's injury was caused by a fellow servant other than Eaton. [1] The loading crew consisted of eight men. J. A. Hansen bought ties for defendant and is the alleged agent of defendant. Fred Wurst was the foreman of the loading crew according to plaintiff's theory, and was the independent contractor according to defendant. We do not think it necessary to consider the point that Hansen or Wurst knew anything about Eaton's alleged lack of competency when he was employed. Eaton had been in the crew about a week or ten days prior to plaintiff's injury. Wurst, the alleged foreman, was one of the crew of eight, and was present all the time. Hansen was present most of the time and inspected as the crew loaded. Plaintiff testified that the next day after Eaton went to work he, plaintiff, noticed things about Eaton's conduct that led him to believe that Eaton was a dangerous man to help load ties; that in tearing down piles of ties or throwing out culls Eaton had to be watched.

"He would just take hold of a tie and tear the pile down; it did not make any difference whether another man was working near him or anything; or in throwing out culls, when the inspector hollowed, `Throw out,' he would throw it out right then. If a fellow didn't watch he would throw it on him. His mind did not seem to be right. He would be talking about anything and then he would wander off; just seemed to be going into a study. If you would speak to him lots of times he would not notice you and lots of times he did. He would talk about anything; you could tell his mind was vacant."

Wurst testified:

"Eaton was a good worker if you was not afraid of him; you had to watch him. When the inspector would hollow, `Throw out,' he would throw a tie down; you had to watch him. He like to have throwed one on me. He would throw ties on the pile and didn't hollow, `Coming, look out,' or nothing. He worked that way all the time. Hansen was present most of the time. Eaton did not act in his right mind to me. He called me off one day and said he was going to St. Louis and take a course at college. He said he was going to be President of the United states, and then he was going to give a poor man a chance to provide for his family. He said he tried to teach people how to live right, he was preaching them the gospel, and they jerked him up and sent him to the asylum, and he said now they could take the gospel and go to hell with it. Sometimes he would act like he never heard you."

There was other evidence tending to show that Eaton was unbalanced and reckless. If plaintiff is to be believed, Eaton without warning, turned loose the stick with which he and plaintiff were carrying the rear end of a large heavy tie, and deliberately walked away, and thereby caused the injury. Regardless of whether Wurst was foreman or not, Hansen was present most of the time and knew or should have known of the incompetency and recklessness of Eaton. We think there is abundant evidence tending to show that Eaton was reckless and incompetent, and that knowledge of such was brought home to defendant in ample time for it to have discharged Eaton and thereby avoided the consequence that be:ell plaintiff because of Eaton's incompetency. We have proceeded in the disposition of the question of Eaton's incompetency and defendant's negligence in connection therewith on the assumption that plaintiff and Eaton were in the employ of defendant.

Were plaintiff and the loading crew, including Eaton, in the employ of defendant, was Wurst an independent contractor, and the crew in his employ? Plaintiff and Wurst and three other members of the loading crew, without objection, testified that they were loading ties for the defendant; that they were in the employ of defendant. Wurst testified that Eaton was not working for him, but was working for defendant. told the crew where to load and paid them. The check was made to "Wurst and the crew," but no separate check was given each man. All received the same price per tie for loading. Hansen paid train fare one way when they went out from town. On one occasion the whole crew struck for a raise and Hansen met the demands and the loading went on. As we understand the record, Wurst struck along with the others of the crew. On cross-examination facts were elicited tending to show that Wurst was the of a loading crew; that he got up the crew himself or gave clrections to others in the crew together. Hansen testified that he was field manager of the defendant ; that he asked Wurst it he wanted the contract to load ties. He testified, in effect, that the loading crew was not in the employ of defendant, but was in fact in the employ of Wurst. He stated that he wrote the check to "Wurst and crew" and signed the defendant's name and also his own.

Much of the evidence offered by plaintiff to show that he was in the employ of defendant was statement of mere conclusions, but there were no objections. We cannot,...