Kennedy v. Laclede Gas Light Co.

• Decision Date: 04 January 1909
• Citation: 115 S.W. 407,215 Mo. 688
• Parties: JOHN T. KENNEDY v. LACLEDE GAS LIGHT COMPANY, Appellant
• Court: Missouri Supreme Court

115 S.W. 407

215 Mo. 688

JOHN T. KENNEDY v. LACLEDE GAS LIGHT COMPANY, Appellant

Supreme Court of Missouri, Second Division

January 4, 1909

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.

Affirmed.

Seddon & Holland for appellant.

(1) The court erred in refusing to give, at the close of all the evidence, the peremptory instruction offered by defendant. Brands v. Car Co., 112 S.W. 511; Forbes v Dunnavant, 198 Mo. 193; Bradley v. Tea & Coffee Co., 111 S.W. 919. (2) The court erred in giving instruction 1 offered by plaintiff. (3) The court erred in giving instruction 16 at the instance of plaintiff. (4) The court erred in refusing to give instruction D at the instance of defendant. Forbes v. Dunnavant, 198 Mo. 193. (5) The court erred in refusing to give instruction E offered by defendant. (6) The court erred in refusing to give instruction F offered by defendant. Forbes v Dunnavant, 198 Mo. 193. (7) The court erred in allowing plaintiff to testify, over the objection of defendant, that the wagon in question was not the regular wagon used by defendant.

A. R. Taylor for respondent.

The contention of appellant that because appellant had in its store-house sufficient skids and appliances for the loading of the reel safely on the wagon is futile, whereas in this case the foreman and vice-principal of appellant was present directing the manner and means to be used in the work, and directed the work to be done with the means and appliances used, and in the manner it was being done. Under such circumstances the foreman Gallagher was the vice-principal of defendant in the matter of providing the appliances for this work, in directing the work to be done and in the entire matter of the work. He was present when he was informed that he had better have the bed or apron of the wagon blocked to keep it from tipping; he neglected and refused to do so. When Shevlin sent the men to get the proper skids and supports to do the work, he countermanded the order and said the work should be done with the appliances on hand, and the evidence shows, without substantial dispute, that the disaster came upon respondent directly because the foreman refused to heed admonitions of the danger of doing the work with insufficient appliances. The principle on which this case was tried finds ample support in the settled law. It is a duty inherent in the relation of master and servant that the master is bound to use ordinary care in supplying appliances reasonably safe and suitable for the servant to work with in the discharge of the duties of his service, and also to use such care, in commanding and controlling the work, and to whomsoever, without regard to rank, the master delegates such duty, such person in the discharge or omission to discharge such duties personifies the master -- and the master is responsible for his neglect injuring the servant. This is the fundamental relation of master and servant, supported by all respectable authorities, and is consistently the ruling of this court. Bane v. Irwin, 172 Mo. 317; Moore v. Railroad, 71 Mo. 78; Moore v. Railroad, 85 Mo. 394; Sullivan v. Railroad, 107 Mo. 78; O'Mellia v. Railroad, 115 Mo. 218; Foster v. Railroad, 115 Mo. 180; Coontz v. Railroad, 121 Mo. 659; Donohoe v. Kansas City, 136 Mo. 670; Herbert v. Railroad, 116 U.S. 648; Coombs v. Const. Co., 205 Mo. 379. This is no case where the master has performed his duty in furnishing to the servants proper means and appliances, and leaving the use of the appliances, manner of the work, etc., to the judgment of the servants. Here the evidence shows the precise contrary. When the servants wanted the proper appliances, and so mentioned to this vice-principal, he commanded the work to proceed without them. The cases cited by appellant are not relevant to the issues in this case.

GANTT, P. J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, P. J.

This action was brought by the plaintiff against the defendant to recover damages on account of personal injuries sustained by him on the 4th of February, 1903, at or near the northeast corner of Broadway and Spruce streets in the city of St. Louis, while plaintiff was in the service of the defendant as a laborer engaged in the work of rolling a heavy cable reel upon a wagon for the defendant. The injury necessitated the amputation of the right leg of the plaintiff above the knee.

The petition in substance states that the defendant is, and at the time mentioned was, a corporation under the laws of this State and used and operated the wagon, reel and appliances herein afterwards mentioned. That prior to and on the 4th of February, 1903, the plaintiff was in the employment of the defendant, and on said day at and about the work of putting a reel of cable wire on a wagon near the northeast corner of Broadway and Spruce streets as a laborer. That as the plaintiff, in the discharge of his duties as such laborer, was assisting in rolling said reel of cable wire upon a wagon furnished by the defendant to receive it, the supports upon which said reel rested gave way and became displaced, whereby said supports under said reel and said reel fell upon his right foot and leg and so injured them as to necessitate the amputation of his right leg above the knee, and otherwise injured him upon his body, and the plaintiff avers that said supports under said reel were caused to give way and so injure the plaintiff because said supports were insufficient for said purpose, and because the wagon furnished to receive said reel by defendant was of improper structure and was unblocked and insecure to prevent its giving way and toppling under the weight of said reel, which was over three thousand pounds in weight. That the floor of the wagon extended beyond the wheels so that when the weight of said reel was applied on the edge of the floor of the wagon the said wagon was caused to give way and the supports under said reel were caused to fall and injure the plaintiff as aforesaid. That the defendant and its agent in charge and control of said work was negligent in using said wagon for said work, and was negligent in failing to put blocks or supports under said wagon or otherwise securing the same to prevent its giving way under said strain. And was further negligent in failing to properly secure the support under the skids used to support the weight of said reel while it was being placed upon said wagon, and was further negligent in ordering plaintiff to do said work when said appliances were in such insecure and dangerous condition. The plaintiff further states that defendant's agent and foreman in charge of said work well knew of the defective and insufficient condition of said wagon and appliances, yet negligently ordered and directed said work to be done without using any care to remedy such conditions, which several acts of defendant and its said agent each contributed to cause the plaintiff's injuries as aforesaid. That by his injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind; has been crippled for life and permanently disabled from labor and has lost and will lose the earnings of his labor, has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, to his damage in the sum of twenty-five thousand dollars, for which sum he prays judgment.

The answer was a general denial and a general plea of contributory negligence. The reply was a general denial.

The testimony tended to show that the defendant at the time of the alleged injury to plaintiff was engaged in furnishing gas and electricity to the people of St. Louis. One of the means of doing this was by using cable wires, and in carrying on its business it became and was necessary for it from time to time to haul reels on which cable wires were rolled from place to place. These reels were hauled upon wagons provided by defendant for that purpose. On the day before the injury a wagon usually used by the defendant for said purpose had broken down and the defendant had procured another wagon which was constructed and adapted to hauling heavy stone. It appears that the bed or floor of this wagon extended out several inches beyond or outside of the wheels, some four to six inches beyond the tires. It was upon this wagon that the defendant's servants, including the plaintiff in this case, were engaged in loading the reel of cable wire, weighing about three thousand pounds, at the time that the plaintiff was injured. The evidence tended to show that this wagon was of the kind generally in use for hauling stone, safes and other heavy articles. The body of this wagon was about eighteen inches from the surface of the ground. On the morning of the injury to plaintiff he was at work at Broadway and Market streets. Miles Shevlin was in charge of several men at Broadway and Spruce, who were trying to put the reel in question upon the wagon. They were unable to procure proper skids or appliances for loading the reel and sent word to the general foreman, Andy Gallagher, that they would require proper skids to put the reel on the wagon. Thereupon Gallagher, who was the foreman over the plaintiff and other employees of the defendant, took six or eight men, including the plaintiff, with him to the place where the reel must be loaded. Prior to Gallagher and his men reaching the place Shevlin had used a barrel skid about eighteen inches wide and twelve feet long, but it proved insufficient, and he on that account sent for Gallagher. After Gallagher reached the place where the reel was, he took charge of the work of loading the reel on to the wagon. It appears that before Gallagher reached the place, Shevlin had sent some of the men to get some blocking and that they met Gallagher...