Morin v. Rainey

• Citation: 207 S.W. 858
• Decision Date: 07 January 1919
• Docket Number: No. 15304.,15304.
• Parties: MORIN v. RAINEY et al.
• Court: Court of Appeal of Missouri (US)

207 S.W. 858

MORIN v. RAINEY et al.

No. 15304.

St. Louis Court of Appeals. Missouri.

January 7, 1919.

On Motion for Rehearing, January 22, 1919.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

"Not to be officially published."

Action by Tony Morin against Spencer Rainey and the American Car & Foundry Company. From a judgment for plaintiff, the last-named defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant.

Safford & Marsalek, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover damages for personal injuries sustained by plaintiff on September 4, 1912, while in the employ of the defendant American Car & Foundry Company as its servant, and alleged to have been sustained through the negligence of defendants. The trial below, before the court and a jury, resulted in a verdict for plaintiff against both defendants in the sum of $5,000, and the defendant American Car & Foundry Company has appealed.

Plaintiff was employed in the foundry of the defendant company in the city of St. Louis. He worked in a building about 20 feet square in which molten iron was handled in the process of manufacturing car wheels. Extending along the western side of this room was a narrow gauge track, upon which were operated, by electricity, a series of small, low trucks, joined together by chains or rods. Upon each of these trucks was placed a heavy pot which, at times, was tilled with molten iron. At the western wall of this building or room, and between the wall and this track, there was an elevated platform upon which stood the operator who controlled the movements of these trucks by turning the power on and off by means of a 'controller" similar to that used by> a motorman in operating an electric street car. A short distance north of this platform, at this western wall of the building, and near this track, there was a larger container termed a "ladle," containing molten iron. By the operation of a lever situated upon the platform mentioned above, this ladle could be "tipped" so that molten iron could be poured from it into the pots upon these trucks, from time to time, as they were successively stopped in the proper position opposite the ladle. The defendant Rainey, a colored employé of the defendant American Car & Foundry Company, and who then had been in its employ about 14 years, stood upon this platform mentioned, and by means of the controller and the lever operated these trucks and this ladle; that is to say, he would cause the trucks carrying these empty pots to be run toward the north and would stop each truck; by means of the controller, in front of the ladle, and would then operate the lever, causing the ladle to tip and pour molten iron into the pot. When the pot was filled, he would, by means of the lever, cause the ladle to be raised to its original position, and would then operate the trucks forward, causing another to stop at the ladle. When the trucks, carrying the pots thus filled with molten metal, were thus conveyed a certain distance toward the north end of the building, the pots of metal were lifted therefrom by means of a chain attached to a crane, and were thus carried to the various places where the molders had prepared "forms" to be filled with the molten metal. When thus emptied, each pot was, by the crane, returned to one of the trucks; and, when all had thus been emptied and returned to the trucks, the entire string of trucks was run back toward the south end of the building, and the process of filling the pots began again.

It frequently happened that when one of these hot, empty pots was returned to a truck by the crane, it would not be placed precisely in the proper position thereon, and it became necessary that it be moved a little. The pots were too hot and too heavy to be moved or adjusted by hand, and this was done by means of a crowbar, by a workman assigned to this work.

When plaintiff was employed by the defendant company, he was put to work at skimming molten iron in large receptacles in this room. After doing this work for a week, he was assigned the duty of adjusting these pots with a crowbar. He is a Croatian unfamiliar with the English language, and gave his testimony through an interpreter. He testified that he was called from his other work by defendant Rainey; that the foreman of defendant company then came and made him understand that he was to adjust the pots (which work he had seen another workman doing), in accordance with the directions given him, from time to time, by Rainey from the platform. It appears that at times another negro occupied the platform and operated the controller and the lever. And in a deposition of plaintiff, read at the trial by defendant's counsel in lieu of further cross-examination, plaintiff testified, in substance, that he was required to obey whichever negro operator was thus on duty and to do whatever the operator told him to do. And at the trial the following stipulation entered into by counsel was read to the jury, viz.:

"It is hereby stipulated and agreed * * * that when plaintiff received injuries on the occasion mentioned in his petition, and for several days theretofore, it was the duty of defendant Spencer Rainey, then in the employ of defendant American Car & Foundry Company, to instruct plaintiff herein as to when, where and how he should place in position pots upon trucks then and there operated by defendants."

Plaintiff had been engaged in this work about a month when injured.:t appears that Rainey communicated with plaintiff from the platform by motioning with his hand; i. e., when it was necessary to move a pot upon one of the trucks, Rainey would indicate, by a motion of his hand, the direction in which it was to be moved, and plaintiff would move it accordingly with his crowbar. And if Rainey intended to move the trucks when plaintiff was in a position to be endangered thereby, it was his custom to call to plaintiff to "look out," a warning which plaintiff understood.

Accordingly to the evidence for plaintiff, just prior to his injury he was east of the tracks upon which the trucks were operated when he was directed by Rainey to adjust one of the pots, and he thereupon immediately undertook to do so. For this purpose it was necessary for him to go upon the track, between two of the trucks, and he accordingly did this. As soon as plaintiff had taken this position and had begun to adjust the pot, Rainey, without warning to plaintiff, operated the controller and caused the trucks to be moved forward, whereby plaintiff was thrown to one side and his leg caught between the truck and a post, causing his leg to be so badly crushed that amputation became necessary.

According to the testimony of Rainey; defendants' only witness, plaintiff was injured by reason of going upon the track without being told to do so, and without the knowledge of the witness. For our purposes this testimony need not be stated in detail.

It is insisted by appellant's learned counsel that the trial court erred in refusing to peremptorily direct a verdict for defendant company. Plaintiff's case proceeds upon the theory that, in respect to giving directions or orders to plaintiff, defendant Rainey was a vice principal of his codefendant, appellant here. It Is argued for appellants however, that, under the evidence and the stipulation, Rainey was not a vice principal but a mere fellow servant with plaintiff. To this we cannot accede. It is true that plaintiff and Rainey worked under a common foreman, but Rainey was given power and authority to direct plaintiff in his work and to control his movements; and plaintiff was required to obey Rainey's directions or orders. If one servant is clothed with power and authority to direct and control other servants, or another servant, in the performance of some branch of the master's work, the master is liable for negligence on the part of such superior servant in the exercise of such power and authority conferred upon him. That this doctrine is fully recognized and established in this state will appear by reference to a few of the many cases which might be cited in support thereof. See Moore v. Railroad, 85 Mo. 588; Schroeder v. Railroad, 108 Mo. 322, 18 S. W. 1094, 18 L. R. A. 827; Miller v. Railroad, 109 Mo. 350, 19 S. W. 58, 32 Am. St. Rep. 673; Bane v. Irwin, 172 Mo. 306, 72 S. W. 522; Burkard v. Rope Co., 217 Mo. 466, loc. cit. 482, 117 W. 35; English v. Rand Shoe Co., 145 Mo. App. 451, 122 S. W. 747; Mertz v. Rope Co., 174 Mo. App. 91, 156 S. W. 807; Jorkiewicz v. Brake Co., 186 Mo. App. 534, 172 S. W. 441.

In Burkard v. Rope Co., supra, 217 Mo. loc. cit. 482, 117 S. W. 41, referring to the rule enunciated in Moore v. Railroad, supra, it is said:

"It is ruled that they are fellow servants who, under the direction and management of the master himself, or by some servant placed by the latter over them, are engaged in the prosecution of the same common work, and without any dependence upon or relation to each other except as colaborers without rank, and that he is a vice principal who is intrusted by the master with power to superintend, direct, or control the workman in his work, and that for negligence in such superintendence, direction, or control, the master is liable."

But it is earnestly contended that, conceding arguendo that, with respect to his authority and duty to direct and control plaintiff in his work, Rainey was...