McMahon v. Chicago, B. & Q. R. Co.

• Citation: 277 S.W. 356
• Decision Date: 03 November 1925
• Docket Number: No. 18051.,18051.
• Parties: McMAHON v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Court of Appeals

277 S.W. 356

McMAHON v. CHICAGO, B. & Q. R. CO.

No. 18051.

St. Louis Court of Appeals. Missouri.

November 3, 1925.

Rehearing Denied November 20, 1925.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Francis J. McMahon against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

H. J. Nelson and J. G. Trimble, both of St. Joseph, and D. E. Killam, of Troy, for appellant.

Lewis O'Connor, of Hannibal, Creech & Penn and John L. Burns, all of Troy, for respondent.

BECKER, J.

The Chicago, Burlington & Quincy Railroad Company, one of the defendants below, appeals from a judgment for $6,000 rendered in favor of the plaintiff in an action of damages for personal injury.

The plaintiff was an expert machinist in the employ of the defendant railroad company, and in the course of his employment as such, while attempting to tighten a cap over a check valve on an engine, using a hammer and chisel for said purpose, a sliver of brass was broken off and flew into his right eye, causing such injuries as necessitated the removal of said eye.

Plaintiff's petition sets out three assignments of negligence as follows:

"That the defendants were negligent in directing the said plaintiff to remove the said check cap and repair the said valve when they knew, or by the exercise of ordinary care could have known, that the check cap was old, worn, in bad repair, and in such defective condition that it could not be replaced in position by the use of a pipe or stillson wrench.

"That the defendants were negligent in directing and ordering the plaintiff to work at the said time and place without providing him with sufficient light, in order that he might see the condition of said check cap, and use means necessary to replace the same without injury to himself.

"That the defendants were negligent in not supplying the plaintiff with help and assistance in replacing the said check cap."

The defendant did not plead contributory negligence as a defense, but filed merely a general denial.

At the close of the case the court, at the request of defendant August N. Troppmann, gave the jury a peremptory instruction directing a verdict in favor of said defendant Troppmann. At the same time the court denied an instruction of similar nature requested by the railroad company, the other defendant.

The appellant, railroad company, here urges on appeal that the negligence pleaded is that of misfeasance, and not that of nonfeasance, and therefore, since the trial court held, as a matter of law, that the servant, the defendant Troppmann, was not guilty of any of the alleged acts of negligence pleaded in plaintiff's petition, and directed a verdict in favor of said defendant, therefore the verdict against the defendant master, the defendant railroad company, which finds the master guilty of such negligence, cannot stand. In other words, the appellant, argues that the case is one against the master and servant as for negligence of the servant in failing to properly perform a lawful duty, namely, for misfeasance, in which cases either the servant and the master are both liable or neither is.

We recognize the rule of law here sought to be invoked by appellant. There are two classes of cases falling under the doctrine of respondeat superior wherein the master is held liable for the negligence of the servant. One class is where the master is held liable for the nonfeasance or the negligent failure of the servant to perform a duty, and the other is where the master is held liable for the misfeasance or negligent Performance of a duty. As has been concretely stated, in one case the servant merely negligently fails to do what should have been done, and in the other he negligently does what should have been done, and properly done.

In the class of cases in which the negligence charged is that of nonfeasance, the servant is not liable to third parties, but the master is held liable under the rule of respondeat superior. In the other class of cases, where the negligence charged is that of misfeasance, the servant as well as the master is liable to third parties on the ground that the servant actually did" the wrongful act which occasioned the injury, and the master is held liable under the rule of respondeat superior as being liable for the negligent act of his servant done within the scope of his employment and in the course and performance of his master's business.

We have set out above the three assignments of negligence as charged in plaintiff's petition. A reading of these assignments readily shows that the case at bar is one for nonfeasance and not one, as urged here by appellant, for negligence for misfeasance. Each of the acts of negligence charged is alleged to be the negligent act of the defendant Troppmann, the assistant foreman in charge of the roundhouse where plaintiff worked. The first assignment of negligence is to the effect "that the defendants were negligent in directing the said plaintiff to remove the check cap," etc. The second assignment of negligence is "that the defendants were negligent in directing and ordering the plaintiff to work at the said time and place without providing him with sufficient light," etc. The third assignment charges "that the defendants were negligent in not supplying the plaintiff with help and assistance," etc.

It may well be that counsel for plaintiff, since he joined the servant as a defendant in the case, may have originally viewed the case as one for misfeasance, but plaintiffs petition clearly charges negligence for nonfeasance, and the trial court, in our view, properly ruled the case, and was not in error when at the close of the case it directed a verdict in favor of the defendant Troppmann.

We next address ourselves to the point raised that the plaintiff failed to make out a case for the jury. Plaintiff's burden in this regard was lightened by the fact that the defendant in its answer did not plead contributory negligence. We therefore set out enough of the testimony to support our conclusion that plaintiff was not guilty of contributory negligence as a matter of law, and that, when viewed in the light most favorable to plaintiff, and allowing him all reasonable inferences that may be drawn therefrom, sufficient evidence was adduced to take plaintiff's case to the jury.

It appears that the plaintiff was an experienced machinist, above the average—in fact, of sufficient skill and knowledge to make inspection reports of engines for the United States government. While in the employ of the defendant company as a machinist, he was directed by the defendant Troppmann, an assistant foreman in charge of the roundhouse in which plaintiff was working, to regrind and reseat the boiler checks of an engine then in the roundhouse. When plaintiff received his orders at about 3 o'clock in the afternoon, he was told it was a "rush job," but some workmen were then letting steam out of the engine in question, and plaintiff was not able to go to work thereon for practically an hour thereafter. Boiler checks are located on either side of the engine above the running Board. In order to reach the checks for regrinding and reseating, it was necessary to first remove the check cap or tap. These caps are made of brass, and when pew are hexagonal in shape, but the check valves frequently become "stuck," and, since the favored method of loosening them is to jar them by a tap of the hammer on the check cap, the check caps in a short time become battered, and in great measure lose their hexagonal shape. Plaintiff, whose duties were especially in connection with steam leaks and checks, was perfectly familiar with these facts.

As to the locus in quo, it appears that the doors of the roundhouse in question were to the rear of the engine on which plaintiff was to work; that the wall of the roundhouse immediately in front of the engine had a great many windows in it; but that not much light came in at them on this occasion, as it was a cloudy afternoon. On the wall in front of the engine, perhaps some 15 feet from the check on which plaintiff was to work, there was an electric light. Another such light was on a post about at the middle of the engine and a like distance from the check. Each of these lights had a reflector behind it. In doing the work plaintiff carried with him a regular machinist's torch, such as engineers use when on night runs, which torch it was the duty of the plaintiff to keep in proper condition.

According to plaintiff's own testimony, his assistant foreman, August Troppmann, one of the defendants, handed out the work, and on the occasion in question directed plaintiff to regrind and reseat the boiler checks of engine No. 1478; that he then told Troppmann he wanted a helper for the job, to which Troppmann replied: "We have none just now, but I will get you one," and then added: "Rush it out because they want it"; that he thereupon got his tools and a short ladder, which he placed against the engine, and proceeded to work, laying his machinist's torch on a small projecting shelf on the side of the engine and a little higher than, and about 29 inches away from, the check on which he intended to work; that on the track immediately next to him an engine stood fired up ready to go out; and that said engine was "popping off," that is, it carried too much steam, and was emitting the surplus through its safety valve. As to the conditions around the engine he was working on with reference to steam, the plaintiff testified:

"Well, it was very near impossible to see on account of the steam coming from this engine and the other engine there; the steam would come down on me, and I could not see anything hardly."

"Q. Could you use goggles? A. No, sir."

"Q. Why? A. The steam would get on them so I couldn't see anything."

Plaintiff testified:

That, after placing his torch at the side of the...