Marshall v. Kansas City
| Decision Date | 12 November 1956 |
| Docket Number | No. 45326,No. 2,45326,2 |
| Parties | Charles MARSHALL, Jr., Appellant, v. KANSAS CITY, Missouri, a Municipal Corporation, Respondent |
| Court | Missouri Supreme Court |
Ben E. Pener, Marcy K. Brown, Jr., Kansas City, for appellant.
Benj. M. Powers, City Counselor, T. James Conway, Frank O. Benson, Asst. City Counselors, Kansas City, for respondent.
BARRETT, Commissioner.
In this action against his employer, Kansas City, for negligent personal injury, consisting in failing to furnish safe tools and a safe place to work, a jury awarded Charles Marshall $9,000. Upon motion, however, the trial court set the verdict aside and entered judgment against Mr. Marshall for the reason that a verdict should have been directed for the city at the close of all the evidence. Upon this appeal by Mr. Marshall the single question is whether, construing the circumstances favorably to him, the fellow servant doctrine is applicable and a bar to his recovery in this action.
Mr. Marshall and John Parker were employed in the sewer department, attached to a 'manhole truck.' Marshall and Parker were laborers and Herman Norris was foreman of the crew. On November 29th or 30th, 1950, the task was to assist in constructing a catch basin in a manhole adjacent to a building on 33rd Street and Broadway. The particular task of the manhole truck crew was to cut a hole in the pavement with a jackhammer. The 'manhole truck' was a dump truck with a compressor mounted on the bed. The jackhammer was carried in the truck bed on one side of the compressor and the one and one-half inch hose, 28 to 30 feet in length, was 'rolled up' on the other side. The truck was stopped at the desired location and Mr. Norris, the foreman, told Marshall to get the jackhammer and Parker to get the hose and attach it to the compressor.
Norris had not marked out on the pavement where the cutting was to be done when Marshall took the jackhammer, which weighs ninety-two pounds, from the truck and was carrying it across his arms, holding a jackhammer cutting point in one hand. Parker had attached the hose to the compressor and was engaged in straightening it out, getting the kinks out of it, by holding to the unfastened end and shaking and pulling it. Marshall, in describing how he was injured, said that as he stepped over the hose, had gotten his left foot over, and Mr. Marshall fell forward, his left knee striking the curbing.
In these circumstances it is argued that Marshall and Parker were not fellow servants. It is urged that the foreman gave two separate orders concerning two separate instrumentalities, one to Parker to arrange the hose and a second to Marshall to take the jackhammer and place it where the hole was to be cut in the pavement. Hence, it is said, that they were doing two distinct and separate jobs 'which constituted a constituent element and a physical part of the place in which Marshall was thereafter required to work.' But, as previously stated, Marshall and Parker were both laborers in the same department (2 Restatement, Agency, Secs. 478, 480) and unquestionably they were engaged in a 'common employment' Greenan v. Emerson Electric Mfg. Co., 354 Mo. 781, 795, 191...
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