Henson v. Pascola Stave Co.

• Decision Date: 10 December 1910
• Citation: 151 Mo. App. 234,131 S.W. 931
• Parties: HENSON v. PASCOLA STAVE CO.
• Court: Missouri Court of Appeals

131 S.W. 931

151 Mo. App. 234

HENSON v. PASCOLA STAVE CO.

Springfield Court of Appeals. Missouri.

December 10, 1910.

1. MASTER AND SERVANT (§ 233)—INJURIES— CONTRIBUTORY NEGLIGENCE.

Plaintiff and other employés were unloading logs from a car, when plaintiff was injured by a stake giving way and permitting the logs to roll off; plaintiff having gone on top of the logs with a cant hook because it was the only place at which he could help, and other employés being at either end. Held, that plaintiff was not negligent in going on top of the logs to assist to unload it.

2. MASTER AND SERVANT (§ 177) — NEGLIGENCE OF FELLOW SERVANT—MASTER'S LIABILITY.

An employer is not ordinarily liable for injury resulting from the negligence of a fellow servant, unless made so by statute.

3. COURTS (§ 91)—RULE OF DECISION—DECISIONS OF SUPREME COURT.

The Court of Appeals must look to the decisions of the Supreme Court as the final rule of decision.

4. MASTER AND SERVANT (§ 196)— FELLOW SERVANTS—WHO ARE.

Plaintiff was injured while on top of a car load of logs assisting to unload them, by a stake giving way, permitting the logs to roll off on the wrong side of the car. Defendant's business was to cut logs in the forest, haul them to the factory, and manufacture them, the loading being done by the employés of the logging engine, and the cars being unloaded at the factory by any one who could be spared to do the work, and the employés in the forest as well as those in the factory were under the immediate direction of the same foreman. Plaintiff's immediate duties were to run a saw at the factory, but he was required to do anything else he was directed to by the foreman, whether in the forest or at the factory. Held, that plaintiff and employés who loaded the logs in the forest were fellow servants, so that the employer was not liable for the negligence of such employés in selecting a defective car stake.

5. MASTER AND SERVANT (§§ 101, 102)—MASTER'S DUTY—SAFE PLACE OF WORK.

A master must use ordinary care to furnish servants with a reasonably safe place in which to work.

6. MASTER AND SERVANT (§ 103)—MASTER'S DUTY—DELEGABLE DUTIES.

The master's duty to use ordinary care to furnish servants a reasonably safe place in which to work cannot be delegated.

7. MASTER AND SERVANT (§ 185)—SAFE PLACE TO WORK—DUTY TO FURNISH.

If it becomes necessary in the performance of the work for a servant or his co-servants to prepare a place of work, the master is not liable for injuries caused by defects in the place prepared caused by fellow servants selecting improper material, if he uses reasonable care to furnish proper material and competent workmen for the preparation of the place of work.

8. MASTER AND SERVANT (§ 185) — NEGLIGENCE—UNSAFE PLACE OF WORK—PLACE CREATED IN COURSE OF WORK—MASTER'S LIABILITY.

Plaintiff was injured while on top of a car load of logs assisting to unload them by a defective car stake breaking, permitting the logs to roll off. The stakes were cut in the forest and placed in the socket by the employés when necessary, new stakes being put in at frequent intervals, and there were plenty of sound trees from which to make stakes. Held, that the duty of cutting and putting in stakes was a simple duty arising during the course of the work, for the negligent performance of which, by employés, the employer was not liable.

9. MASTER AND SERVANT (§§ 101, 102)—INJURIES — INSTRUCTIONS — SAFE PLACE OF WORK.

An instruction that it was an employer's duty to furnish the servants with a reasonably safe place to work was erroneous, in that the employer was only required to use ordinary care to furnish a reasonably safe place to work.

Nixon, P. J., dissenting.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by W. F. Henson against the Pascola Stave Company. From a judgment for plaintiff, defendant appealed, and the case was transferred from the St. Louis Court of Appeals. Reversed and remanded.

Faris & Oliver, for appellant. Ward & Collins, for respondent.

COX, J.

This case was heard at the last term of this court and an opinion rendered by which the judgment was reversed without remanding. Motion for rehearing was sustained and the case reargued at this term. Action for personal injuries received by plaintiff while in the employ of defendant, judgment for plaintiff for $5,000, and defendant has appealed.

Defendant is a corporation operating a stave factory at Pascola, Pemiscot county, and for the purpose of transporting logs from the timber to its factory had built a private railroad some four or five miles long over which logs were hauled upon flat cars made from old stock cars by removing all the framework above the floor of the cars and attaching sockets to the sides of the cars in which wood stakes were inserted to hold the logs in place on the cars. Logs were loaded upon these cars in the timber by laborers in the employ of defendant, who were assisted in that work by the engineer and fireman in charge of the engine that pulled the cars back and forth from the factory to the timber. The logs were 16 to 18 feet long, and were loaded in two sections lengthwise on the car, and two stakes were placed on each side of each section to hold the logs in place, making eight stakes to the car, and those stakes were tied together with wires extending across the car. When one or more cars of logs were brought to the mill, some of the men who worked at the mill would unload the logs, then go back to their ordinary work. To unload the logs the stakes holding them were cut on one side of the car and the logs rolled off on skids. On June 25, 1907, the foreman at the mill or factory directed Mr. Mockaby, his assistant, to unload a car of logs, and he, with this plaintiff and two other men, proceeded to that work. The stakes were cut on one side and one tier or bunk of logs had been unloaded and part of the other tier, when, in the effort to roll off a log a little longer than its fellows and lying on top and between two other logs, two men were at one end of it, one man at the other end, and plaintiff with a cant hook stepped up on top of the logs and took hold of the log with the cant hook, and, as the men lifted in the attempt to roll this log off, a stake on the opposite side of the car gave way, and the logs rolled off the car on the wrong side, carrying plaintiff with them and severely injuring his left leg, resulting in its amputation.

Plaintiff's action is grounded in negligence. The allegation of negligence is covered by the following, which we quote from his petition: "Plaintiff states that said car belonged to the defendant and was old, rotten, and worn-out, and provided with but one pocket or socket in which to place stakes or standards on that side of said car where said logs fell off, and had but one stake or standard on that side of said car; that one stake or standard on said side of said car, on account of the great weight and pressure of the car load of logs against it, was totally insufficient to hold said load of logs; that said stake or standard was old, worm-eaten, and defective, all of which said facts were then and there well known to the defendant, or by the exercise of ordinary care could have been known to the defendant, but none of which facts were known to the plaintiff; that, by reason of all of said defects, insufficient stakes and worn-out condition, said stakes or standards broke as aforesaid, causing the falling of the logs and the plaintiff and his injuries as aforesaid; and that said falling of the plaintiff and his injuries as aforesaid were directly caused by the carelessness and negligence of the defendant in failing and neglecting to provide a reasonably safe place at, around, and about which for plaintiff to work, and in negligently and carelessly failing to provide a reasonably safe and sufficient car, with sufficient and safe appliances thereto, and sufficient and safe pockets and standards or stakes therein to well and safely hold the load of logs on said car." The answer was a general denial, plea of contributory negligence and that the injury was caused by the negligence of a fellow servant and that plaintiff did not properly care for the limb after receiving the injury.

Plaintiff's testimony tended to show that this car had but one stake on the side of the car where these logs fell, and that this stake was partly rotten, and therefore weak and defective, and that when the men, including plaintiff, began to pry and lift the log they were attempting to roll off, the defective stake gave way and caused the logs to roll off and injure plaintiff. Defendant's testimony tended to show that there were two stakes.

Appellant assigns as error the failure of the court to sustain a demurrer to the testimony, and contends that plaintiff's testimony shows:

First, that he was guilty of contributory negligence in getting up on top of the logs with a cant hook to roll a log off. We do not agree with this contention. Plaintiff testified that the other men occupied the space at the end of the log, and there was no room for him to help with the cant hook unless he got on top, and that he took hold of the log near the center to keep it from twisting. This explanation of his action is entirely reasonable, and instead of showing negligence shows that his conduct was right and proper.

Second, that the cause of the injury was the breaking of a defective stake, and defendant was not responsible because the party who placed the defective stake in the socket of the car was a fellow servant of plaintiff.

If the party who selected and placed this stake was a fellow servant of plaintiff, then there can be no question that defendant is not responsible for his negligence, unless the stake be regarded as a part of plaintiff's place to work and the master should, for that reason, be held responsible; for the employer is not ordinarily liable for injuries to an employé resulting from...