Johnson v. Corn Products Refining Co.
| Decision Date | 11 April 1928 |
| Docket Number | No. 26368.,26368. |
| Citation | 6 S.W.2d 568 |
| Parties | JOHN P. JOHNSON, Appellant, v. CORN PRODUCTS REFINING COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. — Hon. E.C. Meservey, Special Judge.
REVERSED AND REMANDED.
L.N. Musser and Mosman, Rogers & Buzard for appellant.
(1) The court erred in sustaining defendant's demurrer to plaintiff's evidence, for the reason that the plaintiff made a case for the jury by showing that plaintiff was injured by reason of the negligent act of the servant to whom defendant had delegated a duty, for the violation of which defendant cannot escape liability. The negligent act of Puckett affected the security of the place wherein plaintiff was required to work, and for his negligence defendant is liable. Bender v. Kroeger Gro. Co., 310 Mo. 488, 294 S.W. (Mo. App.) 732; Carter v. Wolff, 296 S.W. 187; Koerner v. St. Louis Car Co., 209 Mo. 158; Goodin v. Fire Brick Co., 249 S.W. 738; McNulty v. Atlas Portland Cement Co., 249 S.W. 734; Adair v. Terminal Ry. Co., 282 Mo. 133; Mitchell v. Polar Wave Ice & Fuel Co., 206 Mo. App. 271; White v. Montgomery Ward & Co., 191 Mo. App. 268; Zellars v. Water & Light Co., 92 Mo. App. 123; Bright v. Fire Brick Co., 201 S.W. 641. (2) Under the evidence the court should not declare as a matter of law that Puckett and plaintiff were fellow-servants so as to relieve the defendant of liability. McCall v. Nugent Bros., 236 S.W. 324; McMurray v. Ry. Co., 225 Mo. 272; Kautz v. Ref. Car Co., 203 Mo. App. 522; Gayle v. Car & Foundry Co., 177 Mo. 427.
Morrison, Nugent, Wylder & Berger for respondent.
(1) The court did not err in sustaining defendant's demurrer at the close of the plaintiff's case, for the reasons (a) that a reasonably safe place was furnished by the defendant for the work in which Johnson and the other men in his department were engaged; (b) plaintiff and Puckett were engaged in a common enterprise and became and were fellow-servants; (c) the act of Puckett at the time and place complained of was a mere manual act in connection with the common purpose and common enterprise in which Johnson, Puckett and others were engaged; (d) the work done by plaintiff, Puckett, and the other men in that department was so related that all had an equal opportunity to observe and influence each other's conduct and to report any delinquency to a common foreman. Ryan v. McCulley, 123 Mo. 636; Motley v. Fire Brick Co., 187 Mo. App. 703; Rogers v. Schiele, 148 Mo. 53; English v. Rand Shoe Co., 145 Mo. App. 439; Jones v. Liggett & Myers Tobacco Co., 284 S.W. 513; Shaw v. Construction Co., 102 Mo. App. 666; Hawk v. Lumber Co., 166 Mo. 121; Schmeizer v. Furniture Co., 134 Mo. App. 493; Burge v. Car & Foundry Co., 274 S.W. 842; McIntyre v. Tebbetts, 257 Mo. 117; Rowe v. United Rys. Co., 211 Mo. App. 526; Kinser v. Paint & Varnish Co., 249 S.W. 447; Ryan v. Lea, 249 S.W. 685; Ryan v. Christian Board of Publication, 199 S.W. 1031. (2) There being no dispute as to the facts in this case, it became and was the duty of the court to declare that Johnson and Puckett became and were fellow-servants. Consequently, this issue should not have been submitted to the jury. Marshall v. Sehricker, 63 Mo. 311; Bradley v. Tea Co., 213 Mo. 320; Rowe v. United Rys. Co., 211 Mo. App. 526; McIntyre v. Tebbetts, 257 Mo. 117; Hawk v. Lumber Co., 166 Mo. 121; Ryan v. Christian Board of Publication, 199 S.W. 1031; Shaw v. Bambrick-Bates Const. Co., 102 Mo. App. 666.
This is a suit by an employee against his employer to recover $40,000 for personal injuries sustained by the former in the course of his employment through the alleged negligence of the latter. At the close of plaintiff's case in chief, the trial court sustained defendant's demurrer to the evidence. Thereupon plaintiff took an involuntary nonsuit with leave. A motion to set aside the nonsuit was filed in due course, and overruled. This appeal on the part of plaintiff followed.
The facts are simple. Respondent operated a manufacturing plant at North Kansas City. Appellant was employed in the tinplate department. His duties were to truck tin plates from the railroad cars in which they arrived at the plant into a room of respondent's building called the tin-room. Appellant and other employees of respondent were so engaged on the morning of December 13, 1922. Loaded cars were stationed alongside a concrete loading platform which came up to the level of the floors of the cars. The tin was loaded on trucks which were then pulled across the platform, through a doorway and into the tin-room, where it was unloaded and piled. The doorway just referred to was an opening five or six feet wide and seven or seven and one-half feet high. The door itself was quite heavy; it was raised and lowered by means of chains and pulleys. Ordinarily the door remained open; but on the day just mentioned the superintendent of the plant told the foreman in charge of the men unloading the tin that the "girls upstairs," other employees, were complaining of the cold, and for that reason he must put a man at the door to open it when the men with a truck of tin approached and then close it as soon as they had passed through. The foreman accordingly placed an employee named Puckett at the door to open and close it as the ingress and egress of the men required. Prior to such assignment Puckett himself had been engaged in unloading the tin.
The men employed in removing the tin from the cars into the building worked in pairs, two with each truck. Appellant and a fellow-employee named Bronson were working together. On the occasion when appellant was injured he and Bronson had just unloaded in the tin-room a truck load of tin. Together they pulled the empty truck, on the way back to the car, as far as the door. Appellant then turned the truck over to Bronson, who went on through the door, and stepped over to a water tank on the inside of the room, near the door. Just before starting to the tank appellant looked at Puckett, who was on the opposite side of the door and on the inside of the room, to see if Puckett was observing him; Puckett was looking directly at him. Appellant then went to the tank and took a drink of water, which occupied but a few seconds. He then, without again looking at Puckett, started out through the door; as he was in the act of passing under the door Puckett lowered it, striking appellant on the head, knocking him to his knees and severely injuring him.
The question presented for determination on this appeal is whether the injury complained of was caused by a negligent failure of the employer to furnish its employee with a reasonably safe place in which to work, or whether such injury must be attributed to the...
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