Lee v. Detroit Bridge & Iron Works

• Decision Date: 31 May 1876
• Citation: 62 Mo. 565
• Parties: MARY LEE, Plaintiff in Error, v. THE DETROIT BRIDGE AND IRON WORKS, Defendant in Error.
• Court: Missouri Supreme Court

62 Mo. 565

MARY LEE, Plaintiff in Error,

v.THE DETROIT BRIDGE AND IRON WORKS, Defendant in Error.

Supreme Court of Missouri.

May Term, 1876.

Error to Buchanan Circuit Court.

Doniphan & Reed, for Plaintiff in Error.

W. H. Sherman, for Defendant in Error.

I. A master is not liable to his servants for injuries to them produced by the negligence of a fellow servant, unless the master has been negligent in the appointment of such negligent agent, or in retaining such servant after notice of his incompetency. (Whart. Negl., § 224, and cases cited; Shearm. & Redf. Negl., § 86, and cases cited.)

II. The onus of proof of such negligence, or want of care, is on the plaintiff. (McDermott vs. Pac. R. R. Co., 30 Mo., 115; Rohback vs. Pac. R. R. Co., 43 Mo., 187; Harper vs. Ind. & St. L. R. R. Co., 44 Mo., 488; Gibson vs. Pac. R. R. Co., 46 Mo., 163; Moss vs. Pac. R. R. Co., 49 Mo., 168; 32 Md., 410; 37 Eng. C. L., 281; Shearm. & Redf. Negl., § 99, and cases cited; Whart. Negl., §§ 234, 243, and note.)

III. Single exceptional acts of negligence do not prove an employee to be incompetent. (49 Mo., 167; 62 Barb., 623; 38 Ind., 294; 38 Penn. St., 104; 7 Gray, 92; 6 Cush., 396; Whart. Negl., § 238, note 2.)

NAPTON, Judge, delivered the opinion of the court.

This action was brought, under the 3rd section of our law concerning damages, to recover $5,000 for the death of plaintiff's husband, alleged to have been occasioned by the negligence of the defendant.

The petition alleges, that Lee was a day laborer in the employment of defendant; that in adjusting a lock frame, which supported the shaft and lock in the caisson of the pivot pier of the bridge across the river at St. Joseph, Lee was ordered by the assistant superintendent to assist; that the frame was carelessly and negligently swung upon a rolling dolly, and not properly secured; that the duty of adjusting and moving this frame, and working upon it, was such as required skilled and experienced men, for which greater compensation was paid than to day laborers; that it was the duty of the defendant to employ on such work competent and experienced workmen, and to provide secure machinery and appliances, and have it worked in a careful manner; but that defendant failed to employ such skilful and competent men, and carelessly and negligently permitted the use of defective and improper appliances, and entrusted them to the control of incompetent persons, and, in consequence of such negligence, plaintiff's husband was precipitated into the river and drowned.

The answer denies all the allegations of the petition, and sets up contributory negligence, which the replication denies.

After the evidence was given for plaintiff, the court instructed the jury that the plaintiff could not recover, and thereupon plaintiff took a non-suit with leave, etc., and subsequently moved to set it aside, which motion being overruled, the case is brought here by appeal.

It appears from the testimony, that the accident occurred in putting in a frame into the caisson. This frame had been built on the bank of the river, and moved on a dolly to the point where it was suspended, directly over the caisson, by a block and tackle to let it down to its proper place in the caisson. The ropes around the frame embraced the plank, on which it rested, and the dolly, on which it had been moved, and were so unskilfully adjusted, that, when the foreman ordered the men to jump on it, to press it down, it inclined to one side, and five of the men on it were precipitated into the water, and one of them, Lee, was drowned.

The machinery was all right; there was no defect in the ropes or pulley, or any other appliances used; but the dolly was improperly left under the plank on which the frame rested. The work was under the immediate care of one Shepley, who with another foreman, named Taylor, was putting on the frame. Both of these foremen were under the supervision of Patton, assistant superintendent, and Robinson, general superintendent. Patton and Robinson were both present when the accident occurred. It does not appear,...