Moriarty v. Schwarzschild & Sulzberger Company

• Decision Date: 05 October 1908
• Parties: MAURICE MORIARTY, Respondent, v. SCHWARZSCHILD & SULZBERGER COMPANY, Appellant
• Court: Kansas Court of Appeals

112 S.W. 1034

132 Mo.App. 650

MAURICE MORIARTY, Respondent, v. SCHWARZSCHILD & SULZBERGER COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 5, 1908

Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.

Judgment affirmed.

Warner Dean, McLeod & Timmons for appellant.

(1) Jurors should not be permitted to base their verdicts on mere conjecture. McCarthy v. Fagin, 42 Mo.App. 606; Murdock v. Brown, 16 Mo.App. 548; McConey v Wallace, 22 Mo.App. 377; Peck v. Railroad, 31 Mo.App. 123; McGrath v. Transit Co., 197 Mo. 97; Cothron v. Packing Co., 98 Mo.App. 343. (2) Proof of the existence of a defect in appliances in itself does not establish a right of recovery. Breen v. Cooperage Co., 50 Mo.App. 202; Brown v. Lumber Co., 65 Mo.App. 162; Plefka v. Knapp, 145 Mo. 316. (3) The evidence fails to show negligence on the part of the defendant, as charged in the petition. 20 Am. & Eng. Ency. of Law 78; Pleasants v. Railroad, 120 N.C. 402; Pleasants v. Railroad, 61 Am. St. 674; Kappes v Shoe Co., 116 Mo.App. 165; Purcell v. Shoe Co., 187 Mo. 276; Labatt on Master and Servant, sec. 590. (4) The delinquent coservant may have failed to use the instrumentalities furnished, and so created the abnormal danger which caused the injury. Labatt, Master and Servant, secs. 590, 593, and cases cited in footnotes; Guggenheim v. Flanigan, 62 N. J. L. 354, 42 A. 145; Kimmer v. Webber, 151 N.Y. 417, 45 N.E. 860; Lambert v. Pulp Co., 72 Vt. 278. (5) If Flisk was in any manner negligent, his act was that of a fellow-servant. Foley v. The Peninsular, 79 F. 972; Deehan v. The Bolivia, 59 F. 626; Kenny v. The Cunard, 52 N.Y.S. 434; Labatt, Master and Servant, sec. 594; Griffiths v. Gidlow, 3 Hurlst & N. 648; Ludlow v. Bridge Co., 42 N.Y.S. 343; McPhee v. Scully, 163 Mass. 216; Pierce v. Oliver, 18 Ind.App. 87; Collyer v. Railroad, 49 N. J. L. 59; Bagley v. Gas Co., 39 N.Y.S. 302; Frawley v. Sheldon, 20 R. I. 258; Snyder v. Mining Co., 2 Idaho 771; Railroad v. Becker, 38 Ill.App. 523; Tobin v. Friedman, 67 Ill.App. 149; Kraeft v. Mayer, 92 Wis. 252; Gaeghegan v. Atlas Co., 146 N.Y. 369; Quebec Co. v. Merchant, 133 U.S. 375; Sofield v. Smelting Co., 64 N. J. L. 605; Filbert v. Canal Co., 121 N.Y. 207; The Louisiana, 74 F. 748; Olson v. Coal Co., 104 F. 574.

Walsh & Morrison for respondent.

(1) The negligence of the defendant was the proximate cause of plaintiff's injury. Wendler v. Furnishing Co., 165 Mo. 541; Schultz v. Moon, 33 Mo.App. 340; Shore v. Bridge Co., 111 Mo.App. 287; Hallweg v. Telephone Co., 195 Mo. 149. (2) Defendant is liable for neglect of the duty it owed the plaintiff even though the negligence of a fellow-servant contributed to the injury. Cole v. Transit Co., 183 Mo. 94, cases cited.

OPINION

BROADDUS, P. J.

This is a suit for damages as the alleged result of the negligence of defendant. The defendant owns and operates a meat-packing establishment in Kansas City. The plaintiff was in its employ as a common laborer at the time of his injury. At the time, he and another employee were engaged in removing barrels of meat from one part of the establishment to another. The barrels were on the second floor, from which they were being removed by means of an elevator to the first floor. The manner of doing the work was for one man to remove the barrels of meat, one at a time, from what is known as the cooler and, rolling them out of the door which was about sixteen feet from the elevator and leave them about six feet from the elevator. Three barrels made a load, to be put and carried on the elevator. A workman by the name of Flisk was loading the elevator and plaintiff was unloading it on the floor below. While plaintiff would be unloading the elevator, Flisk would be rolling out three barrels onto the floor, as stated, to have them in readiness to load when the elevator returned. There was a decline in the floor for a distance of six or eight feet from the door of the elevator. It was the aim and practice of Flisk to rest the barrels on the floor before they reached the decline in the floor. On the day of plaintiff's injury, after about three loads had been sent down and plaintiff was unloading, one of the barrels placed upon the floor rolled down the incline in the floor into the open door of the elevator and fell upon the plaintiff and severely injured him. Flisk was at a loss to account for the barrel leaving its position on the floor, as he was of the opinion that he had left it at the usual place and not on the incline. No one saw it start or what caused it to start. The door of the elevator was open at the time and the evidence is that it had been left open at all times, and that there were cleats used to keep it open. Neither Flisk nor plaintiff had the management of the elevator. Flisk, who was a witness for plaintiff, stated that plaintiff had at times loaded the elevator on the second floor, but plaintiff stated that he had no remembrance of ever having done so and denied that he had. It seems that Flisk knew of the incline in the floor, but did not appreciate that it was dangerous. It was shown that Mr. Pickett, the overseer, was around when the work was in progress; also that different employees, otherwise engaged at work and handling heavy material, were passing and repassing between the place where the barrels were placed and the elevator. It further appeared that the barrel had been placed on the floor but a very short time before it commenced its descent toward the elevator.

The judgment was for plaintiff and defendant appealed. The defendant's position is that: "Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the injury, but show a state of affairs from which an inference could as reasonably be drawn that the accident was due to a cause or causes other than the negligent act of defendant, the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances, nor is defendant called upon to explain the cause of the accident or purge itself of the inference of negligence. The doctrine of res ipso loquitur does not apply in such cases." And such was literally the holding in McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; and the same rule was applied to the case of Cothron v. Packing Co., 98 Mo.App. 343, 73 S.W. 279. And it is also a well established rule that "Proof of the existence of a defect in appliances, in itself, does not establish a right of recovery; it must further appear, not as the result of bare conjecture, that the defect was the proximate cause of the injury, and that the master was chargeable with knowledge of it." [Breen v. Cooperage Co., 50 Mo.App. 202.] And if the appliance is defective, the plaintiff must do more, he must show that the defect was the direct and immediate cause of the injury.

Applying these rules to the facts in the case as made out by plaintiff, we...