McCarver v. St. Joseph Lead Co.

• Citation: 268 S.W. 687,216 Mo.App. 370
• Parties: ROSIE McCARVER, Respondent, v. ST. JOSEPH LEAD COMPANY and R. S. FOSTER, Appellants. *
• Decision Date: 03 February 1925
• Court: Court of Appeal of Missouri (US)

268 S.W. 687

216 Mo.App. 370

ROSIE McCARVER, Respondent, v. ST. JOSEPH LEAD COMPANY and R. S. FOSTER, Appellants. *

Court of Appeals of Missouri, St. Louis

February 3, 1925

Appeal from the Circuit Court of St. Francois County.--Hon. Peter H Huck, Judge.

AFFIRMED.

Judgment affirmed.

W. E Bennick, and C. J. Stanton for appellants.

(1) The court erred as to both defendants in overruling both the joint demurrer and the separate demurrers filed by defendants at the close of all the evidence. (a) Defendants had the right to delegate to McCarver the duty of inspecting the back in stope 2385 of the mine and of taking down the loose rock therein. Livengood v. Lead & Zinc Co., 179 Mo. 229; Knorpp v. Wagner, 195 Mo. 637; Bradley v. Tea & Coffee Co., 213 Mo. 320; Trainer v. Mining Co., 243 Mo. 359; Shelton v. Light, Power & Ice Co., 258 Mo. 534, 167 S.W. 544. (b) Since injury from falling back was a risk incident to the character of his employment, McCarver assumed the risk of the injury which caused his death. Livengood v. Lead & Zinc Co., 179 Mo. 229; Knorpp v. Wagner, 195 Mo. 637; Bradley v. Tea & Coffee Co., 213 Mo. 320; Trainer v. Mining Co., 243 Mo. 359; Britt v. Crebo, 199 S.W. 154. (c) The neglect of McCarver, to whom had been delegated the duty of inspecting the back in stope 2385 and taking down the loose rock therein, to make a correct examination as to the extent of the loose rock, was contributory negligence. Livengood v. Lead & Zinc Co., 179 Mo. 229; Trainer v. Mining Co., 243 Mo. 359; Anderson v. Granite & Const Co., 178 S.W. 737; Mitchell v. Ice & Fuel Co., 206 Mo.App. 271, 227 S.W. 266. (d) McCarver knew that Foster had made no inspection of the back other than to flash his light against it and that his order to McCarver to take down the loose rock constituted not an assurance of safety, but a warning that the rock was loose and likely to fall at any time. Knorpp v. Wagner, 195 Mo. 637; Snyder v. Mining Co., 206 S.W. 593; Henson v. Packing Co., 113 Mo.App. 618. (e) The authority of Foster to superintent McCarver's work and see that his contract was complied with did not change the status of McCarver under his contract. McGrath v. St. Louis, 215 Mo. 191; Lofty v. Const. Co., 256 S.W. 83. (2) The court erred as to both defendants in giving instruction No. 1 for the plaintiff. (a) It assumes that McCarver was ordered to leave the part of the mine in which he was regularly employed and go to a place where he was not regularly engaged, when the evidence is undisputed that it was his duty to inspect the back and take down the loose rock in the entire stope 2385. An instruction which is not predicated upon the evidence is erroneous. Riley v. City of Independence, 258 Mo. 671, 167 S.W. 1022; Wellmeyer v. Transit Co., 198 Mo. 527. (b) The only negligence which it permits the jury to find against defendant Foster is nonfeasance, for which he is not personally liable to plaintiff. Harriman v. Stowe, 57 Mo. 93; Steinhauser v. Spraul, 127 Mo. 541; McGinnis v. Railroad, 200 Mo. 347; Hamm v. Railroad, 245 S.W. 1109; O'Neil v. Young, 58 Mo.App. 628. (3) The court erred as to both defendants in giving instruction No. 2 for the plaintiff. (a) It incorrectly states the rule to guide the jury in determining the question of contributory negligence. The rule given in this instruction is the one for the court and not for the jury. Bradley v. Railroad, 138 Mo. 293; Bennett v. Lime Co., 146 Mo.App. 565. (4) The court erred as to defendant Foster in overruling defendants' joint motion in arrest of judgment for the reason that the petition does not state a cause of action against defendant Foster. (a) The alleged negligence of Foster, as set out in the petition, is nonfeasance, for which he is not personally liable to the plaintiff. Harriman v. Stowe, 57 Mo. 93; Steinhauser v. Spraul, 127 Mo. 541; McGinnis v. Railroad, 200 Mo. 347; Hamm v. Railroad, 245 S.W. 1109; O'Neil v. Young, 58 Mo.App. 628.

Marsalek & Stahlhuth for respondents.

(1) In determining whether the demurrer offered at the close of the evidence should have been sustained the court, on appeal, will accept the evidence in plaintiff's favor, and every reasonable inference therefrom tending to support plaintiff's case, as true. In ruling upon the demurrer the court will not draw inferences of fact in defendants' favor to countervail or overthrow inferences in favor of plaintiff. Hall v. Coal & Coke Co., 260 Mo. 351; Knoche v. Pratt, 194 Mo.App. 300; Maginnis v. Railroad, 268 Mo. 667; Buesching v. Gas. Co., 73 Mo. 219. The demurrer cannot be sustained unless the evidence is such as to leave no room for men of reasonable intelligence to differ on an essential issue in the case. Steffens v. Fischer, 161 Mo.App. 386. (2) The duty to inspect the place of labor and to maintain it in reasonably safe condition rests primarily upon the master, and the servant is entitled to rely upon the presumption that this duty has been performed. Stratton v. Baking Co., 237 S.W. 543; Minter v. Gidinsky, 228 S.W. 1078-9; Goode v. Coal Co., 179 Mo.App. 207; Gambino v. Coal Co., 180 Mo.App. 653; Gerard v. Coal Co., 207 Mo. 254; Clark v. Foundry Co., 234 Mo. 436. (3) The duty to inspect is owed by the master to a superintendent or foreman to the same extent as to any other employee, unless that duty has been exclusively delegated by the master of said foreman or superintendent. Nichols v. Plate Glass Co., 126 Mo. 55; Daniels v. Goeke, 191 Mo.App. 1; 3 Labatt, Master & Servant (2 Ed.), p. 2392; Mitchell v. Ice & Fuel Co., 106 Mo.App. 271. And where the duty of inspection or of maintaining a safe place is delegated to men on two shifts, the master is liable if the negligence of the men on one shift in that regard injuries an employee on the other shift. Zellars v. Water Co., 92 Mo.App. 107. (4) Foster's order to McCarver to take down the small rock which Foster pointed out to him constituted in the law an assurance to McCarver that the work could be performed with reasonable safety, upon which assurance McCarver was entitled to rely, especially in view of the fact that Foster, the superintendent, both by reason of his technical training and wide and varied experience in mining operations was in far better position than McCarver to judge of the advisability of removing the rock, and because Foster and the mine captain were better equipped to discover the condition of the roof than was McCarver. Keegan v. Kavanaugh et al., 62 Mo. 230; Sullivan v. Railroad, 107 Mo. 66; Herdler v. Range Co., 136 Mo. 3; Swearingen v. Mining Co., 212 Mo. 524. (5) The fact that the work was necessarily attended with some danger did not relieve the master from the duty to exercise reasonable care, but emphasized the importance and necessity of those having charge of the work proceeding carefully and cautiously, and under such circumstances, especially, is the master culpable if he causes the servant's injury by ordering him into a position of peril which the master could have discovered before giving the order. Fleming v. Mining Co., 194 Mo.App. 212-214; Smith v. Kansas City, 125 Mo.App. 150; Highfill v. City of Independence (Mo. Sup.), 189 S.W. 801; Medley v. Mining Co., 207 S.W. 887. (6) Appellants' contention that the assumption-of-risk doctrine precludes plaintiff's recovery is not well taken. Liability in this case is bottomed upon negligence in ordering the deceased into a position of danger, which danger appellants could have discovered by making a reasonably careful inspection. The servant does not assume the risk arising from such negligence of the master under the law in this State. Wendler v. House Furnishing Co., 165 Mo. 536; Boten v. Ice Co., 180 Mo.App. 96; Bradley v. Coal Co., 167 Mo.App. 177; Kielty v. Construction Co., 121 Mo.App. 63; Burkard v. Rope Co., 217 Mo. 479; Huskey v. Boiler Co., 192 Mo.App. 377. (7) Plaintiff's instruction No. 2 properly told the jury that they could not find plaintiff guilty of negligence in obeying Foster's order unless McCarver's compliance with the order subjected him to glaring and imminent danger. Corby v. Tel. Co., 231 Mo. 417; Burkard v. Rope Co., 217 Mo. 481, and cases cited; Conroy v. Iron Wks., 62 Mo. 35; Fogus v. Railroad, 50 Mo.App. 268; 5 Thompson Negligence, sec. 5378; Carter v. Baldwin, 107 Mo.App. 277; Nash v. St. Joseph Lead Co., 238 S.W. 584. (8) Foster's negligent order to McCarver was not nonfeasance, but misfeasance, for which Foster was personally liable. Ordering a workman into a place of danger is a positive, affirmative act, although it may contain an element of neglect, or nonfeasance, in so far as it involves a failure to inspect before giving the command. Lottman v. Barnett, 62 Mo. 159; Harriman v. Stowe, 57 Mo. 93; Carson v. Quinn, 127 Mo.App. 522; Huskey v. Boiler Co., supra.

BRUERE, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

BRUERE, C.

Plaintiff brings this action to recover damages for the death of her husband, caused by the alleged negligence of the defendant and its employee R. S. Foster. Plaintiff obtained a verdict and judgment below for five thousand dollars, and defendants appeal.

The material allegations of the petition, in support of which evidence was introduced at the trial and upon which the case was submitted to the jury, are that on the 28th day of April 1922, the deceased, Oliver H. McCarver, was employed by the defendant at its lead mine as a driller, and while thus employed was directed by the defendant, by and through its superintendent, R. S. Foster, to leave his regular place of work and to take down a small rock from the roof or back of one of the rooms of said mine, at a place other than the place in which said Oliver H. McCarver was regularly employed; that said roof was composed of rotten or insecure rock, which fact said...