Maxwell v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1884
• Citation: 85 Mo. 95
• Court: Missouri Supreme Court
• Parties: MAXWELL v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

85 Mo. 95

MAXWELL

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Livingston Circuit Court.--HON. JAS. M. DAVIS, Judge.

AFFIRMED.

W. H. Russell and G. W. Easley for appellant.

(1) The relation between Walker, the foreman, and the plaintiff was that of fellow servants. Daubert v. Pickett, 4 Mo. App. 590; Hamilton v. Iron Mt. Co., 4 Mo. App. 564; Hofnagle v. Ry., 55 N. Y. 608; Crispin v. Babbitt, 81 N. Y. 520; Farwell v. R. R., 4 Met. 49; Rains v. R. R., 71 Mo. 164; Lee v. Detroit, etc., 62 Mo. 416; Cagney v. Ry., 69 Mo. 416; McDermott v. Ry., 71 Mo. 516; Cooley on Torts, 541, 562; Wood's Master and Servant, 898, et seq. (2) Where the plaintiff seeks to recover on the ground that the defendant failed to exercise reasonable care in employing or in negligently retaining in its employ an incompetent servant when it knew, or by the exercise of ordinary care might have known, of such incompetency, it must be shown that such incompetency was the direct and immediate cause of the injury. Both the default of the servant and the want of ordinary care of the master in employing or retaining him must concur. Wright v. R. R., 25 N. Y. 562; Culhane v. R. R., 60 N. Y. 137; Hayes v. Ry., 3 Cush. 270; Laning v. Ry., 49 N. Y. 529; Skip v. Ry., 24 L. & E. 396; s. c. 9 Exch. 223. Applying the foregoing principles to the case at bar the plaintiff is not entitled to recover. (3) But even if Walker did order a blow which was improper and negligent, still his negligence was not the direct and immediate cause of plaintiff's injury. Reed held the hammer and was striking the wedge and he alone could regulate the force of the blow, and if there was any negligence which was the proximate cause of the injury to plaintiff, it was that of Reed who was plaintiff's fellow servant and competent and skilful. 1 Wharton on Negligence, secs. 134, 147; Cooley on Torts, 79, 80. (4) The plaintiff cannot recover because he knew and had the same means of knowlege that the defendant did of the incompetency of his fellow servant, and with such knowledge continued to work with him. Davis v. Detroit, etc., Railroad Co., 20 Mich. 105; Indianapolis & Cin. Railroad Co. v. Love, 10 Ind. 556; Laning v. N. Y. Cent. Railroad Co., 49 N. Y. 521, 534; Skip v. Eastern Railroad Co., 24 L. & E. 396; Thayer v. St. L., Alton, etc., Railroad Co., 22 Ind. 29; Wood on M. & S., 804 and 805, sec. 422; 2 Thompson on Neg. 1008, sec. 15, and 1014-1017, secs. 19, 20 and 22. And see: Dale v. St. L., etc., Railroad Co., 63 Mo. 455; Devitt v. Pacific Railroad Co., 50 Mo. 302.

C. W. Bell, S. P. Huston and H. Lithgow for respondent.

(1) A servant in entering upon an employment assumes its ordinary risks, but the negligence of the master is not one of the ordinary risks. It is the duty of the latter to exercise ordinary care, to employ and retain none but competent and careful fellow servants. If he fail to perform such duty, it is the master's negligence. The master cannot delegate this duty so as to escape responsibility. His delegate, in that respect, is the master--acts in place of the master, and is aptly termed a vice principal. Harper v. Indianapolis Railroad Co., 44 Mo. 488; Harper v. Indianapolis Railroad Co., 47 Mo. 567; Moss v. Pac. Railroad Co., 49 Mo. 167; Marshall v. Schricker, 63 Mo. 308; Baulec v. Railroad Co., 59 N. Y. 359. (2) The evidence very clearly tended to prove that Walker was an unsafe man for his position and that Richards, defendant's vice-principal had notice of it for weeks before the injury but still retained him in the service. (3) The appellant urges that Reed mistook the degree of force intended by the words of Walker, “give it hell;” that Walker intended it as a very mild admonition, a sort of Ingersoll hell; but that Reed, being orthodox, understood it to mean an old fashioned fire and brimstone affair, and acted accordingly. This argument comes from the intimate knowledge of theology possessed by the learned gentleman representing the appellant, but as addressed to the ordinary affairs of life, it is not very convincing. We understand it to be an expression used to call forth the utmost effort. (4) The instructions given on both sides presented the case to the jury with exceptional fairness to the defendant, in fact more liberally than the decisions of this court warrant. Porter v. Railroad, 71 Mo. 73. The tenth instruction asked by defendant was properly refused. This instruction ignores the suddenness of the order, and the circumstances in which plaintiff was placed, the order of his boss, and required him to resolve his line of action in a moment, and act in a single instant of time, and declares as matter of law that failure was negligence which precluded a recovery. Brown v. Railroad Co., 32 N. Y. 597; Beiseigel v. Railroad Co., 34 N. Y. 622; Gayner v. Railroad Co., 100 Mass. 208; Railroad Co. v. Stone, 17 Wall. 663; Flynn v. Railroad Co., 78 Mo. 195. (5) The motion for a new trial was not well taken on the ground of newly discovered evidence. A new trial is never granted where the alleged new facts are to be proven by witnesses who testified at the trial. Cook v. Railroad, 56 Mo. 380.

HENRY, C. J.

This is an action for damages for personal injury. The petition alleges that plaintiff was in the employ of defendant, working in a stone quarry, and that one Walker, who was defendant's foreman, directed him to hold an iron wedge which was to be driven into a rock, and, while plaintiff was so holding the wedge, Walker ordered the person driving the wedge to strike it, in an improper, negligent and unskilful manner, with a violent and heavy blow, and that said driver struck it a heavy, violent and unusual blow, which caused the wedge to rebound, striking plaintiff in the face breaking his nose and putting out his left eye. It further alleged that Walker was incompetent, unskilful and unfit to perform the duties of foreman. That he was in the habit of becoming intoxicated, which was known to defendant long before the injuries herein complained of, or might have been known, etc., and that plaintiff did not know of his incompetency, or dissipated habits. The answer was a general denial. On a trial of the cause, the plaintiff obtained a judgment for $3,000, from which this appeal is prosecuted.

The evidence tended to prove the facts as alleged, with reference to the manner in which plaintiff was injured. There was evidence tending to prove that Richards, who had the chief control of that work, and hired and discharged men employed in the quarry, knew some weeks before the plaintiff was injured that Walker was in the habit of getting drunk, and also, that, at the time the injury was sustained by plaintiff, he was drinking. That he kept whiskey in a hollow log or stump near the quarry, and made frequent visits to it. That when sober, he was a skilful quarryman of considerable experience. On the occasion that plaintiff was injured, it is the testimony that Walker first attempted, with a sledge hammer, to drive the wedge, but called to Reed who took the wedge, and, after making a few slight blows upon the wedge, Walker said to him, “give it hell,” and thereupon, he struck it a violent blow, which caused it to fly out of the crevice, as alleged in the petition.

For plaintiff the court instructed the jury as follows:

“1. If the jury believe from the evidence that plaintiff was in the defendant's employ on the fourteenth day of June, 1881, and was then struck in the face and injured, and his eye put out by the rebound of a wedge used in opening rock, and that such rebound was caused by a heavy, unskilful and reckless blow given by the order and direction of one A. M. Walker, foreman or boss in the quarry; that said Walker was in defendant's employ at the time, and that he was under the influence of liquor at the time, and was thereby rendered an incompetent and unsafe man to have in charge of said work; that his habits for some time previous thereto had been intemperate, and that the defendant had notice or knowledge of such intemperate habits before the injury to plaintiff, then their finding must be for the plaintiff, unless they believe from the evidence that the plaintiff knew of the intemperate or reckless habits of said Walker, and with such knowledge continued in the defendant's employ, or that he at the time he was injured failed to use ordinary care to prevent injury, and was guilty of such negligence at the time as contributed directly to his injury.”

“2. The jury are further instructed that if they believe from the evidence that James Richards was defendant's superintendent of masonry and stone work, and had power to employ and discharge Walker and the other persons employed in the quarry, and was the representative of the defendant in so doing, then notice to him or knowledge by him of the intemperate habits of Walker was notice to and knowledge by the defendant.”

“3. The jury are instructed that the plaintiff is not chargeable with any negligence in failing to inquire into or investigate the habits of Walker, but was justified in relying on defendant's duty to neither employ nor retain incompetent, intemperate or reckless bosses or foremen, after notice or knowledge thereof by defendant or its agent in the selection, hiring and discharging of hands; and although the jury should believe from the evidence that Walker was an habitual drunkard, and that his habits in that respect were generally known in Mooresville, yet that fact alone does not preclude a recovery by plaintiff, but to have that effect the jury must believe from the evidence that the plaintiff knew of such habits of Walker.”

“4. If the jury find for plaintiff, they may, in estimating his damages, take into consideration all the facts and circumstances as detailed in evidence; his loss of time, his bodily and mental suffering, his expenses incurred in and about attempting to cure himself, the extent of his injuries and...