Ischer v. St. Louis Bridge Co.

• Decision Date: 21 May 1888
• Citation: 8 S.W. 367,95 Mo. 261
• Parties: Ischer v. St. Louis Bridge Company et al., Appellants
• Court: Missouri Supreme Court

8 S.W. 367

95 Mo. 261

Ischer v. St. Louis Bridge Company et al., Appellants

Supreme Court of Missouri

May 21, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Amos M. Thayer Judge.

Reversed and remanded.

S. M Breckinridge and M.F. Watts for appellants.

(1) The court erred in overruling the demurrer to the evidence. There was a fatal variance between the allegations and the proof. Neilon v. Railroad, 85 Mo. 599. (2) The court erred in refusing to give the first instruction asked by defendant. Daubert v. Pickle, 4 Mo.App. 591; Hamilton v Railroad, 4 Mo.App. 564; Weger v. Railroad, 55 Pa. 460; Peterson v. Coal Co., 58 Ind. 673; Coal Co. v. James, 86 Pa. 432; Flynn v. Salem, 134 Mass. 351; Brown v. Railroad, 27 Minn. 162; Abend v. Railroad, 111 Ill. 202; 2 Thomp. on Neg. 1023; Mathews v. Case, 61 Wis. 491; Huffman v. Railroad, 78 Mo. 50. (3) The court erred in refusing to give the second instruction asked by defendant. A master is not liable to a servant for the negligent acts of an incompetent foreman unless the master knew, or, by exercise of reasonable care, might have known, of the foreman's incompetency. Huffman v. Railroad, 78 Mo. 50; Kersey v. Railroad, 79 Mo. 362; Murphy v. Railroad, 71 Mo. 202; Hilts v. Railroad, 55 Mich. 437; McDermott v. Railroad, 87 Mo. 285. (4) The court erred in giving the first instruction given by it of its own motion. Railroad v. Robinson, 106 Ill. 142; Thompson's Charging the Jury, sec. 62, and cases there cited.

A. R. Taylor for respondent.

(1) The petition charges that Schow, whose negligence caused the injury to plaintiff, was the agent, i. e., the vice-principal of the defendant. This is distinctly alleged and is the essential charge. The fact that the petition also alleges the incompetency of Schow, and defendant's negligence in appointing him, does not affect the materiality of the first charge. McDermott v. Railroad, 87 Mo. 302. The petition was drawn to meet either view, and as, at the time, the cases of Moore v. Railroad, 85 Mo. 588; Stephens v. Railroad, 86 Mo. 229; Dowling v. Allen, 88 Mo. 203; and Hoke v. Railroad, 88 Mo. 360, had not been decided, and as the question of who were fellow-servants, and who agents or vice-principals, was in some uncertainty, the plaintiff was entitled to rely upon either ground that the facts warranted. If Schow was defendant's alter ego, it is liable for his negligence whilst performing the powers and duties of the master. Authorities supra. (2) The causa causans of the injury was the conduct of Schow, and the verdict is supported by the evidence. Lee v. Woolsey, 109 Pa. St. 124.

Norton C. J. Judge Sherwood concurring only in the result.

OPINION

Norton, C. J.

This is an action for damages for personal injuries in which plaintiff recovered judgment for five thousand dollars, from which defendants have appealed. The cause of action alleged in the petition is as follows: That plaintiff was in the employment of defendants unloading iron pipes from certain cars, at the city of St. Louis, near the Union Depot; that, whilst so engaged, one of the iron pipes rolled against him and caught one of his legs crushing the bones so that it had to be amputated. It is alleged "that said iron pipe was caused to roll upon, and against, and crush plaintiff's leg, as aforesaid, through the negligence and carelessness of defendants' agent, one Christian Schow, defendants' foreman, in directing and controlling the unloading of said iron pipes; that said foreman, at the time of said injury, was driving the plaintiff and his co-employes with such curses and threats that the said work could not be done with due safety to said employes, which said action of said foreman contributed directly to cause said injury; that said Schow compelled plaintiff to take a place of great and unnecessary danger by threats and cursing him, and then by his recklessness and negligence, in hurrying plaintiff and his co-employes in said work, caused said iron pipe to roll upon and injure plaintiff as aforesaid; that said Christian Schow was unfit and incompetent to discharge the duties of such foreman by reason of his reckless and brutal habit and disposition, of which defendants had knowledge at the time he was employed, or could, by the exercise of ordinary care, have known it." The answer was a general denial.

The action of the trial court in refusing to sustain a demurrer to the evidence, and in giving and refusing instructions, is assigned for error. But two witnesses (the plaintiff being one of them) were examined as to what took place when plaintiff was injured, and their evidence tended to show the following state of facts: That in April, 1880, plaintiff was in the employ of defendants in unloading iron pipes from box cars; these pipes were from twelve to fourteen feet long, about one foot in diameter, weighing eighteen hundred to two thousand pounds, and were placed in both ends of the cars, two tiers in each end, one tier on the other; that plaintiff had been in defendants' employ about eight days, and was one of a gang of six or seven men, of which Christian Schow was foreman; that, at the time of the accident, plaintiff and others of the men were shoving one of said pipes out of the car door; that the pipes had all been removed out of one end of the car, and the upper row in the other end had also been removed, leaving the bottom row of pipes. In order to get the pipe out of the car, one of the workmen had inserted a wooden bar in one end of the pipe just high enough to permit another workman to place a small iron bar under it, on which, acting as a pivot, the pipe was turned in order to launch it out of the side door of the car. The custom had been to "chock" the pipes on the floor of the car with small blocks of wood provided for that purpose, to prevent them from rolling when one of the pipes was removed. The evidence showed that this was usually done by Schow, and when not done by him was done by some of the men, but that, at the time of the accident in which plaintiff was hurt, this was not done.

It is further shown that plaintiff at first assisted the workmen at the end of the pipe near the car door, but of his own accord and without directions from the foreman, went to the rear end of the pipe, when Schow, the foreman, called to him and said, "God damn you, you come here and stay where I put you, and don't you go away from here either." Plaintiff returned as directed, but left his post again, and was again ordered back, and remained there till the iron bar gave way and he was injured. During this time Schow was swearing and saying, "God damn you, hurry up there; I don't want to be all day unloading this car." When Schow was cursing, the men...