Hopkins v. American Car & Foundry Co.

Decision Date07 June 1927
Docket NumberNo. 19819.,19819.
PartiesHOPKINS v. AMERICAN CAR & FOUNDRY CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

Action by Wallace Hopkins against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (G. A. Orth, of New York City, of counsel), for appellant.

Loins J. Robinson and Earl M. Pirkey, both of St. Louis, for respondent.

DAUBS, P. J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant. There was a verdict and judgment in favor of plaintiff for $1,750, and defendant appeals.

The petition charges the defendant with failing to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work. The petition, omitting inducement and formal parts, is as follows:

"The place where plaintiff was so working was not reasonably safe for him by reason of the fact that said pile was insecure and there was probable danger of it falling on and injuring plaintiff, and defendant knew, or by the exercise of ordinary care would have known, that said pile was insecure and of the danger of injury to plaintiff therefrom before plaintiff was injured, as hereinafter mentioned, and in time to have, by the exercise of ordinary care, remedied said condition before plaintiff was injured as aforesaid and thereby averted the injuries to plaintiff, but defendant negligently failed to do so, and negligently piled said pile in an insecure manner; and after defendant knew, or by the exercise of ordinary care would have known, that said pile was insecure, and of the danger of injury to plaintiff therefrom, defendant negligently required plaintiff to be and work near said pile, all without protection or notice of any kind to him." (Italics ours.)

The answer is a general denial.

Appellant's assignment of errors are to the effect, first, that the court erred in refusing the demurrers requested by appellant at the close of plaintiff's case, and again at the close of the whole case, and for the reason that the petition wholly failed to state facts sufficient to constitute a cause of action, and because the undisputed evidence shows that the proximate cause of the falling of the pile of iron was either conjectural or was the result of the act of a fellow servant. And under the latter assignment appellant's counsel say in their brief: "Frankly, appellant considers that the evidence showed that the proximate cause was the negligence of a fellow servant."

There are three other assignments of error; one goes to the misreception of evidence, another charges an impropriety in the argument of plaintiff's counsel, and, finally, that the verdict is excessive.

Since counsel concede that the proximate cause was the negligence of a fellow servant, we will not discuss the point that the proximate cause was conjectural, but will examine the record to see whether the undisputed evidence shows that the proximate cause of the sliding of the iron was the result of negligence of a fellow servant.

Two principles of law here applicable are so well established that it is hardly necessary to cite authorities. First, it is the duty of the master to exercise ordinary care to furnish plaintiff with a reasonably safe place to work, and that duty is nondelegable. Lampe v. Amer. Ry. Express Co. (Mo. App.) 266 S. W. 1009. And, further, the act of a fellow servant in the presence and under the supervision of the foreman is an act a the master. Krajcevic v. Belz Provision Co. (Mo. App.) 260 S. W. 825. We have no doubt that the record evidence as now presented on this appeal is sufficient to have warranted the trial court in overruling the demurrer as offered on the theory that the evidence shows that plaintiff's injury was due to the negligence of a fellow servant.

The most favorable proof to plaintiff is to the effect that at the time of the injury he was a laborer as a helper in the service of the defendant at its plant in the city of St. Louis. A Mr. Houseman, for the defendant, actually employed plaintiff, and he was put to work with a man named Chiney and told by Houseman to follow Chiney's orders and instructions, and that Chiney was told by Houseman to direct plaintiff what to do and how to do it.

On the day of the casualty, November 4, 1924, plaintiff was working under Chiney at a shearing machine where steel was being sheared. Plaintiff said he held the steel while Chiney sheared it. On this day defendant put a man designated as a Mexican to work with plaintiff under Chiney. It appears that Chiney was cutting "Z" bars,. which were pieces of steel ten feet long, that after they were cut they would be piled on top of one another by the Mexican, and it is in evidence that if the steel bars were properly piled they would lock and secure the pile from falling, but that if they were not so piled they would remain detached and would likely fall when the pile got high enough. Plaintiff wag permitted, with either model or illustrated "Z" bar in hand, to demonstrate to the jury how they would lock if properly piled and how they would fall if not properly piled. The Mexican piled the bars in such away that they would not interlock. Plaintiff and Chiney and the Mexican were working together for a space of three hours, and then the pile became of such height that it fell over on plaintiff's foot and caused the injury. Plaintiff says that the ground where the bars were being piled was level and that there was no wind blowing. On direct examination, plaintiff said the pile fell because the Mexican improperly piled same, and on cross-examination said there was no other cause that he could detect which would cause the bars to fall except that they were not properly piled. This last answer was stricken out on motion of appellant. It is conceded that the improper piling of the bars caused the falling of the steel on plaintiff. It is in evidence, then, that when the Mexican started to work at this place the foreman told him to work under Chiney, and told Chiney to give him his orders. Chiney was acting as foreman and gave the Mexican his orders as to how he wanted the bars stacked; that they should be piled so that they would interlock. However, the Mexican did not do so, and the foreman being right there all the while did not cause the Mexican to desist from so piling the bars, but permitted him to build the pile up in such a manner that they would not interlock. Under such circumstances it cannot be said that the undisputed evidence is to the effect that the injury was caused by the act of a fellow servant, for the act of the Mexican was done in the presence and under the supervision and constant watch of the foreman, and such act by the Mexican might well be held to be the act of the master. See Krajcovic v. Provision Co., supra, and cases there cited. Then, on that score, the lower court properly ruled the demurrer.

But a more difficult question arises and that is as to the petition itself. We have set out above the charge of negligence in the petition. Does same allege facts sufficient to charge an unsafe place to work? In determining the sufficiency of this petition it is insisted by appellant that two cases of the Supreme Court, one from each division, squarely hold the petition bad. The respondent denies this and relies on a case from that court en banc. We will lay these cases side by side to determine the effect of those decisions as we understand them. Of course, if the case en banc is decisive we must follow it as against the divisional opinions. State ex rel. v. Reynolds, 278 Mo. 554, 213 S. W. 782.

In the case of Sabol v. Cooperage Co., 313 Mo. 527, 282 S. W. 425, decided by the Supreme Court, Division 1, in October 1925, and in which a motion to transfer en banc was overruled, the court had under review a petition drawn by the same counsel as appear for plaintiff in this case and in which the language of the petition is almost exactly as here, except as to the portion italicized by us. The petition there charged that the place at which plaintiff was...

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