McCaffrey v. Tamm Bros. Glue Co.

• Decision Date: 02 November 1909
• Citation: 123 S.W. 944
• Parties: McCAFFREY v. TAMM BROS. GLUE CO.
• Court: Missouri Court of Appeals

123 S.W. 944

McCAFFREY v. TAMM BROS. GLUE CO.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

Rehearing Denied November 30, 1909.

1. MASTER AND SERVANT (§ 128) — SAFE APPLIANCES — UNUSUAL USE.

A master who sanctions the continuous use of an appliance by his employés for a purpose different from the one it was designed for must exercise care to have the appliance reasonably safe for the employés' use for such purpose.

2. MASTER AND SERVANT (§ 125) — INJURY TO SERVANT — DEFECTIVE APPLIANCES.

A servant was injured while tying a rope over sacks on a wagon by the breaking of a chain to which one end of the rope was tied. The chain had been broken and had been tied together. The evidence did not show that any foreman knew of the defect in the chain, or would have known of it by reasonable care. There was nothing to show that the business was of such magnitude or that the machinery used was so dangerous as to call for inspection of the vehicles used. Only a fellow servant knew that the chain had been broken and repaired. There was evidence that the fellow servant had tied the chain just before he drove the wagon into the yard to be loaded. Held, as a matter of law, not to show the master's liability for the injuries received.

3. MASTER AND SERVANT (§ 107) — INJURY TO SERVANT — DEFECTIVE APPLIANCES.

Where a master supplied wagons to his servants to haul goods, and the servants tied the load by a rope drawn over it and tied to a chain, the master was liable for injury to a servant caused by the breaking of the chain while he attempted to fasten a rope to it, on proof that the chain was in bad repair for such a time that the master would have known the fact by due care, and that the master ought to have anticipated injury from the defect.

4. MASTER AND SERVANT (§ 196) — "FELLOW SERVANTS" — WHO ARE.

A servant employed in a glue factory, engaged in sacking hair and loading it on wagons for shipment, and a servant engaged in driving a wagon and in assisting in loading it are fellow servants while engaged in loading the wagon.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Neil McCaffrey against the Tamm Bros. Glue Company. From a judgment for plaintiff, defendant appeals. Reversed.

Morrow & Kelly, for appellant. Cornelius F. Bauer and H. A. Ashoff, for respondent.

GOODE, J.

This plaintiff was hurt while working for defendant in its factory, and recovered judgment in the present action upon the verdict of a jury; whereupon, after proper motions, an appeal was taken. Among the tasks of the factory was sacking hair and loading it on wagons for shipment. Plaintiff had worked in the establishment for eight years at the time of the accident, his job being to assort hair, see it was ready for the market, and sack and load it on wagons when a load was called for. As many sacks would be piled on a wagon as could be, and after the load was finished, a rope would be drawn over the top of the sacks and tied to the front and rear of the wagon, so as to hold the sacks in place and prevent them from dropping in consequence of the motion of the wagon. Plaintiff testified he had nothing to do with the wagons and team or anything except hair, but there was testimony going to show he was in the habit of notifying defendant's superintendent or manager when anything was out of repair about a wagon or harness, and was expected to do so. As far as the case is developed in the present record, the employés of defendant who figure in it do not appear to have had different lines of duty so rigidly marked off that nothing was expected of them outside of prescribed and definite tasks, though each one worked, in the main, at such a task, lending a hand occasionally at a different kind of work. Archie Stepto, is a negro who worked in the factory, usually in the warehouse, but occasionally he was sent out with a team. He says whenever the work was rushing he would take out a team and wagon; any team which happened to be standing in the stable. He had worked for the company eight years, and during that time had driven a team off and on. John Crist was another employé who worked "in the hair," he said, and was an assistant to McCaffrey, the plaintiff. Richard Minkie testified he was a salesman, a sort of yardman, not a superintendent and never had been; that he did not have any particular charge of the teams in the yards or the wagons. But there was testimony he was superintendent, general yard foreman, and had charge of the wagons, teams, and teamsters. One morning he ordered Stepto to take a wagon and team, "Go down, get a load of hair," and take it to Glencoe's, wherever that may be. Stepto hitched a team to a glue stock wagon. Minkie weighed it, and Stepto drove into the yard of the factory and asked plaintiff for a load of hair. The testimony for plaintiff goes to show he was expected to be expeditious and even hasty in loading the wagon. Stepto was in the wagon bed to receive the sacks as Crist and plaintiff threw them to him. After the pile had been completed, the men attempted to tie the sacks on the wagon, and in doing so the accident occurred in which plaintiff was hurt. The process of tying was styled "booming," and...