Levecke v. Curtis & Co. Manufacturing Co.
| Citation | 193 S.W. 985,197 Mo.App. 262 |
| Parties | MAX E. LEVECKE, Respondent, v. CURTIS & COMPANY MANUFACTURING COMPANY, Appellant |
| Decision Date | 03 April 1917 |
| Court | Court of Appeal of Missouri (US) |
Argued and Submitted, March 6, 1917.
Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.
AFFIRMED.
Judgment affirmed.
Charles E. Morrow for appellant.
(1) The demurrer to the evidence should have been sustained. (a) The plaintiff was left in charge of the men under him with power to direct and control them, and was a vice-principal. Miller v. Railroad, 109 Mo. 350; Hunt v. Lead Co., 104 Mo.App. 377; Browning v. Kasten, 107 Mo.App. 59. Defendant had a right to and did delegate to plaintiff the power to call other employees to help him. Knorp v. Wagner, 195 Mo. 637; Denker v. Milling Co., 135 Mo.App. 340, 344; Klein v. Shoe Co., 91 Mo.App. 102. (b) The refusal of other employees to assist the plaintiff was in no way due to the fault of defendant for the defendant had no notice that they had refused. Parker v. Railroad, 18 R. I. 773; Railroad v Barber, 5 Ohio St., 563; Westenitz v. Goldman, 154 A.D. 829; 3 Labatt's Master and Servant, page 2914. The situation is analogous to the temporary absence of a servant without the master's knowledge. 26 Cyc. 1293; Parker v. Railroad Co., 18 R. I. 773; National Tube Co. v. Bedell, 96 Pa. St. 175; 3 Labatt's Master and Servant, page 2914. (c) The defendant was not bound to anticipate that other employees which it knew would be at the plant, two of whom had helped place the motor in the afternoon before, would refuse to assist the plaintiff in this simple task, and when they did refuse, it was the duty of the plaintiff to notify his master and call for more help and until notice of the fact that they had refused defendant cannot be held liable. Railroad v. Barber, 5 Ohio St. 563; 26 Cyc. 1293. (d) The plaintiff was an expert and also a vice-principal representing the master, and when the workmen refused to assist him it was his duty to report this fact to the master and not to go ahead with the work with insufficient help, and he was guilty of contributory negligence in undertaking to do the work with insufficient help. Knorp v. Wagner, 195 Mo. 637; Roberts v. Telephone Co., 166 Mo. 370; Brundell v. Mfg. Co., 198 Mo. 552; Fogus v. Railroad, 50 Mo.App. 250, 263; Railroad v. Barber, 5 Ohio St. 563. (2) Instruction numbered 7, given by the court on behalf of the plaintiff, is erroneous. It is not enough that the defendant's negligence, combined with the act of the plaintiff's fellow-servant to cause the injury, and that the plaintiff would not have been injured except through the combined negligence of such fellow-servant and the negligence of the defendant; but it is necessary that the negligence of the defendant complained of concurred with that of plaintiff's fellow-servant, and became a part of the direct and proximate cause of the plaintiff's injury. Harrison v. Kansas City Elec. Light Co., 195 Mo. 606, 623; Smith v. Fordyce, 190 Mo. 1, 21; Freeman v. Telephone Co., 160 Mo.App. 271, 279; Mertz v. Rope Co., 174 Mo.App. 94, 108, 109; Small v. Ice & Fuel Co., 179 Mo.App. 456, 460, 461. In order to make the defendant liable for its concurring negligence with the negligent act of plaintiff's fellow-servant, it is necessary for the plaintiff to show that the negligent act of the defendant was the efficient cause of the injury, Mertz v. Rope Co., 174 Mo.App. 94; Small v. Ice & Fuel Co., 179 Mo.App. 456, 461. Did the act of plaintiff's fellow-servant break the causal connection between the defendant's alleged negligence and the plaintiff's injury? Was it such as intervening independent act as to break the chain of causation? That is the real question. Browning v. Railroad, 124 Mo. 70. (3) The court erred in giving instruction numbered 6 for the plaintiff, which told the jury that the plaintiff was not guilty of contributory negligence unless the danger and hazard of the undertaking was of such an imminent and threatening character as to prevent a reasonably prudent person from undertaking it. Bradley v. Railroad, 138 Mo. 293, 309, 310. This instruction ignores a question in the case as to whether or not the method of doing the work employed by plaintiff was usual and customary and absolves him of contributory negligence unless the danger was so imminent and threatening that a reasonably prudent person would not have attempted to do it. (4) Instruction numbered 1 given on behalf of the plaintiff is erroneous in stating to the jury that defendant was liable if it failed to furnish a reasonably sufficient number of men to do with reasonable safety the work, "taking into consideration the kind of appliances which were furnished by the defendant with which to do said work." The plaintiff himself was an expert and a vice-principal. There is no claim that the defendant failed to furnish sufficient appliances and there was a question as to whether or not the plaintiff had availed himself of the ordinary appliances used in such work and at hand, such as blocks, and was doing the work in the usual and ordinary way, and for that reason the instruction is erroneous.
Claud D. Hall and E. W. Mills for respondent.
(1) It was the defendant's duty to furnish plaintiff sufficient men to do the work in hand at the time. 3 La Batt on Master & Servant, sec. 1107, pages 2912 and 1469, Note 4, also sec 1503; McMullen v. Railroad, 60 Mo.App. 231; Boden v. Demwolf, 56 F. 846; Alabama G. S. Ry. Co. v. Vail, 142 Ala. 134; Dair v. N. Y. P. Steamship Co., 124 N.Y.S. 295; Hardy v. Carolina, C. R. Co., 76 N.C. 5; Flike v. Railroad Co., 53 N.Y. 549; Di Bari v. J. W. Bishop Co., 199 Mass. 254; Fitter v. Telephone Co., 143 Iowa 689; Ill. Central Ry. Co. v. Langan, 116 Ky. L. 318; Southwest Imp. Co. v. Smith, 85 Va. 306; 26 Cyc. 1292. (a) The master's duty to furnish a sufficient number of men is a continuing duty. 3 La Batt on Master & Servant, sec. 1107, p. 2913; Bonn v. Railroad, 82 S.W. 808 (Tex. Civ. App.); Aleckson v. Railroad Co., 101 A.D. 399; 26 Cyc. 1292. (2) Whether the master has furnished a sufficient number of men is primarily for the jury. 3 La Batt on Master & Servant, sec. 1108, page 2915; McMullen v. Railroad, 60 Mo.App. 231; Meilly v. Railroad Co., 215 Mo. 567; Fogus v. Railroad Co., 50 Mo.App. 250; Stoddard v. St. Louis, K. C. & N. Ry. Co., 65 Mo. 514; Craig v. Chicago & Alton Ry. Co., 54 Mo.App. 523; Supple v. Agnew, 191 Ill. 439; 26 Cyc. 1292-3. (3) The plaintiff did not assume the risk of the injury, as a matter of law. McMullen v. Railroad, 60 Mo.App. 23; Stoddard v. Railroad, 65 Mo. 514; Thorpe v. Railroad, 89 Mo. 650; Supple v. Agnew, 191 Ill. 439; Ill. Central Ry. Co. v. Langan, 116 Ky. L. 318; Shaw v. Mfg. Co., 146 N.C. 235; Northern Pacific Ry. Co. v. Herbert, 116 U.S. 642; Copeland v. Railroad, 175 Mo. 650; Dair v. N. Y. P. R. Steamship Co., 139 A.D. 751. (a) Plaintiff did not assume the risk of injury from the negligence of the master in failing to furnish sufficient help. Craig v. Railroad, 54 Mo.App. 523; Northern Pacific Ry. Co. v. Herbert, 116 U.S. 642; Dair v. Porto Rico Steamship Co., 139 A.D. 751; Illinois Central v. Langan, 116 Ky. L. Rep. 318; Fitter v. Telephone Co., 143 Iowa 689, 605. (b) And this last rule applies to cases where the master has failed to furnish a sufficient number of workmen. Fogus v. Railroad Co., 50 Mo.App. 250; McMullen v. Railroad, 60 Mo.App. 231; Fritter v. Telephone Co., 143 Iowa 689, 695. (4) The plaintiff was not guilty of contributory negligence as a matter of law. Fogus v. Railroad Co., 50 Mo.App. 250; Peterson v. American Grass Frame Co., 90 Minn. 343; Thorpe v. Railroad, 89 Mo. 650; Hanna v. Railroad Co., 178 Mo.App. 281; Stoddard v. Railroad Co., 55 Mo. 514; 26 Cyc. 1259; Shaw v. Mfg. Co., 146 N.C. 235; Fitter v. Telephone Co., 143 Iowa 689, 692. (a) Plaintiff's negligence was for the jury, though he be a man of good judgment. Scott v. Springfield, 81 Mo.App. 312, 321; and cases cited under point 4. (5) The court did not err in refusing defendant's instructions B and D, which told the jury that if plaintiff was instructed to call other workmen, but they refused without reporting same to defendant, plaintiff could not recover. (a) Because defendant's duty to furnish help was affirmative and continuous. 3 LaBatt on Master & Servant, sec. 1107, page 2913; Aleckson v. Railroad Co., 101 A.D. 399; Bonn v. Railroad, 82 S.W. 808 (Tex. Civ. App.). (b) The testimony showed that the servants plaintiff called to help refused to help because they were not authorized to do so. The defendant was charged with the knowledge at all times that they were not authorized to help plaintiff and to do so was not within their duties. (c) Because these instructions were in the nature of peremptory instructions for the defendant, which entirely ignored defendant's negligence and ignored the fact that plaintiff was exercising ordinary care for his own safety. (6) Plaintiff's instruction No. 1 was proper. Meiley v. Railroad Co., 215 Mo. 567, 576; Stering v. Parker-Washington Co., 185 Mo.App. 192, 217-218; Gardner v. Metropolitan St. Ry. Co., 167 Mo.App. 605. (7) The plaintiff's instruction No. 6 that plaintiff did not assume the risk unless the hazard of the undertaking in which plaintiff was engaged at the time of his alleged injuries was of such imminent and threatening character as to prevent a reasonably prudent person from undertaking the same, etc., was proper. (See, also, defendant's instruction No. 8 on the same issue.) Fogus v. Railroad Co., 50 Mo.App. 268; Baxter v. Lumber Co., 186 Mo.App. 352-369; Barnard v. Brick and Coal Co., 189 Mo.App. 417-422; McMullen v. Railroad Co., 60 Mo.App. 231; Stoddard v. St. L., K. C. & Northern Ry. Co., 65 Mo. 514; Thorpe v. Mo. Pacific Ry. Co., 80 Mo. 650; Peppers v....
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