Padgett v. Scullingallagher Iron & Steel Company
| Decision Date | 07 November 1911 |
| Citation | 140 S.W. 943,160 Mo.App. 544 |
| Parties | GEORGE W. PADGETT, Respondent, v. SCULLINGALLAGHER IRON & STEEL COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted October 5, 1911.
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
REVERSED.
Judgment reversed.
Watts Williams & Dines and William R. Gentry for appellant.
(1) The court erred in overruling the demurrer to the evidence because the plaintiff and Dowd were fellow-servants. (a) They were fellow-servants because engaged in a common employment under the same master working to accomplish the same common end. Donelly v. Mfg. Co., 75 P. 1017; Railroad v. Kneirn, 152 Ill. 456; Richardson v. Mesker, 171 Mo. 666; Hawk v. Lumber Co., 166 Mo. 121; Sams v. Railroad, 174 Mo. 53; Murray v. Railroad, 98 Mo. 573; McCarty v. Hotel Co., 144 Mo. 397; Jackson v. Mining Co., 106 Mo.App. 441; Electric Co. v. Wells, 110 Ga. 192; Koszlowski v. Locomotive Works, 96 A.D. 40; Stringham v. Stewart, 111 N.Y. 188; Delory v. Blodgett, 185 Mass. 126; Dantzler v. Coal Co., 22 L.R.A. 361; Ewan v. Lippincott, 47 N. J. L. 192, 54 Am. Rep. 148; Henshaw v. Pond's Extract Co., 66 Hun 632; Quigley v. Levering, 167 N.Y. 58 (54 L.R.A. 62); Helling v. Schindler, 145 Cal. 303; Cregan v. Marston, 126 N.Y. 568; Manning v. Gen. Riv. & Lake O. S. Co., 66 A.D. 314; Bjbjian v. Rubber Co. , 164 Mass. 214; Meehan v. Mfg. Co., 52 N.E. 518.
(b) The only idea advanced in the petition as to why Dowd was the representative of the master was that he was the one to whom was entrusted the duty of taking care of the electrical appliances and the place where the plaintiff had to work. This is overcome by the fact that at the time of the accident, if it should be construed that Dowd was engaged in repair work, the plaintiff was also engaged with him in the same repair work, and therefore the rule making the master responsible for the negligent act of the servant who repairs the appliance negligently and thereby causes injury to another servant who thereafter uses it as a completed appliance, does not apply. Murphy v. Railroad, 88 N.Y. 146; Locomotive Works v. Hand, 50 N. J. L. 464; Slavens v. Railroad, 97 F. 255; Sherrin v. Railroad, 103 Mo. 384.
Morgan L. Masters and A. R. Taylor for respondent.
It is the rudimental law of the relation of master and servant, that it is a duty incumbent on the master to exercise ordinary care in providing to his servant, means and appliances wherewith to do the work of his employment with reasonable safety to the servant, and such care to provide and maintain a place to work reasonably safe and suitable for the servant to work in the discharge of his service. This duty of the master is inherent in the relation, and the master cannot delegate such duty to another servant, whatever his rank, and escape liability for its negligent performance or omission. Dayharsh v. Railroad, 103 Mo. 576; Herdler v. Buck Co., 136 Mo. 16; Doyle v. Trust Co., 140 Mo. 10; Bane v. Troin, 172 Mo. 317; Combs v. Construction Co., 205 Mo. 384; Koerner v. Car Co., 209 Mo. 160. In this last cited case the switchman was charged with the master's duty, and the case was not under the railroad fellow-servant law. Burkhard v. Rope Co., 217 Mo. 482. In this case the doctrine is reasserted that the servant chosen by the master to direct and control the particular work, is the representative of the master. In the recent case of Clark v. Iron and Foundry Co., 137 S.W. 581, the same doctrine is asserted.
Respondent, plaintiff below, was employed by defendant as an operator on a crane used in the works of defendant and which was moved about on tracks by means of electricity, running from one end of the foundry of defendant to the other. On one end of the crane there is a cage about four feet wide by six feet long, in which the operator stands. It is about thirty feet above the ground and is reached by means of a stationary ladder. There were several controllers and a switchboard in the cage, the controllers being used to operate the crane. The current is carried along trolley wires and connection made through a trolley bar which has a wheel on one end, the wheel being in contact with and rolling along the trolley wire. On the afternoon of the day of the accident, the trolley wire had been broken and been repaired by the day electrician, "and when it was joined together the greasy side was turned so the wire would not receive the electricity," to quote the language of plaintiff. It was therefore necessary to clean off this grease. Plaintiff was on the night shift, working from 6 p. m. to 6 a. m. On the evening, that is after six o'clock of the day of the accident, plaintiff and one Cunningham, who was operator of another crane, also moved by the same trolley wires, were in the cage of the crane operated by plaintiff, intending to run it along the track. Neither crane could be moved until the grease was cleaned off of the trolley wire, and Cunningham had gone into the cage occupied by plaintiff, apparently to see about cleaning the trolley wire. One Dowd was an electrician who was on duty at night about the works. On the evening in question and about half past six, Dowd came to the cage where plaintiff and Cunningham were, to wipe the grease off of the trolley wire. Plaintiff had looked over the machinery of the crane and had oiled it and was about ready to start it when Dowd came along and called to him to hold on. When Dowd came to the crane where the men were, he was carrying in his hand a lot of cotton waste and an open can containing gasoline. He told the men that he would clean the trolley wire off, would take the grease off of the trolley wire. Whereupon he (Dowd) started to climb up the ladder and into the cage. Dowd told plaintiff that he was there with gasoline to clean the wire off. Whereupon plaintiff said to him, Dowd, however, came up the ladder with the gasoline and, according to plaintiff, saturated the cotton waste with the gasoline. After he had done that he told plaintiff to "swing down the shop," which meant to turn on the current of electricity and put the crane in motion or "swing" it, so that he (Dowd) could wipe the trolley as they moved along. The open can containing the gasoline, which it appears was a tomato can, was sitting on a rack in the cage or on one of the controllers. Plaintiff testified that the reason he told Dowd not to bring the gasoline up into the cage was because he knew it was explosive and a dangerous substance and that when fire was brought near the vapor of gasoline an explosion was likely to occur, and he further testified that Cunningham said to Dowd that it was dangerous to bring the gasoline up into the cage and not to do it; that there was liable to be a spark from the trolley wire.
According to Cunningham, the only other eyewitness to the transaction, and who testified in the case on behalf of plaintiff, Dowd came up to the foot of the ladder with the can of gasoline and some cotton waste in his hand. He came up the ladder into the cage, saturated the waste with the gasoline and put the can down. Whereupon witness told him it was dangerous; that he never used any of it. Dowd paid no attention to him but went to the corner of the cage to clean the trolley wire and told plaintiff to move--to move the crane, that is to turn on the current. On cross-examination, however, this witness said that he had saturated the waste himself when Dowd came up into the cage; that Dowd had brought the can with the gasoline in it up to him and handed it to witness, who set it on the controller. Plaintiff only turned on one point, as he called it, to start the crane in motion and Dowd proceeded to wipe off the trolley wire. As soon as the current was turned on there was a spark emitted from the trolley wire against which Dowd was holding the waste saturated with gasoline and the waste caught fire. Dowd forthwith dropped it to the floor of the cage. The fire from the waste was communicated to the clothing of Dowd, who had on heavy gloves and so protected his hands, but his clothing on the front of his body being on fire, plaintiff jerked Dowd's "jumper" off from behind to put the fire out. Dowd dropped the burning waste to the floor of the cage. In the confusion that resulted from trying to put out the fire on Dowd's clothes, the can of gasoline was overturned, its contents spilling on plaintiff and on the floor and the whole mass was set on fire, and plaintiff's clothing catching fire, he was very severely burned. So much for the accident.
Touching the relation of the parties to each other, the testimony was to the effect that all the men at work for defendant in these shops, were under a common head a Mr. Pearson, who was assistant superintendent of the works. He had hired plaintiff some three years before. There were two or more electricians who appear to have been under the immediate charge of a Mr. Ed. Jannell, who was the chief electrician, and who also appears to have been under Mr. Pearson, but does not appear to have been on night duty. Dowd and apparently another man were the electricians who had to attend to anything that had to be done at night in connection with repairs of the electric appliances connected with the machinery as well as the lights. Any new work, such as installation, connected with the electrical appliances that had to be done, was never done at night but done during the day. On this particular evening, Dowd was on duty. It was customary for Dowd or whoever the electrician on night work was, to be called on to attend to whatever had to be done connected with...
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