Pulley v. Standard Oil Co.

• Decision Date: 11 January 1909
• Citation: 136 Mo. App. 172,116 S.W. 430
• Parties: PULLEY v. STANDARD OIL CO.
• Court: Missouri Court of Appeals

116 S.W. 430

136 Mo. App. 172

PULLEY v. STANDARD OIL CO.

Kansas City Court of Appeals. Missouri.

January 11, 1909.

Rehearing Denied February 27, 1909.

1. MASTER AND SERVANT (§ 90)—DUTY TO SERVANT.

A master is not liable to a servant for a mistake which the exercise of reasonable care by a competent person would not avoid.

2. MASTER AND SERVANT (§ 132)—CARE REQUIRED OF MASTER.

A master, in directing a servant to perform certain work, has a right to assume that the servant will himself exercise ordinary care in performing the work.

3. MASTER AND SERVANT (§ 177)—ACTS OF FELLOW SERVANT.

A master, in directing several servants to perform certain work, has a right to assume that each will act with the ordinary care of one in that situation with regard to the safety of others.

4. MASTER AND SERVANT (§ 279)—INJURY TO SERVANT — PROXIMATE CAUSE—NEGLIGENCE OF FELLOW SERVANT.

Evidence held to show that plaintiff's injury was the result of the negligence of fellow servants in dropping without warning their end of a large pipe, which they and plaintiff were carrying, and not the great weight of the pipe.

5. MASTER AND SERVANT (§ 220)—INJURY TO SERVANT—ASSUMPTION OF RISK.

A servant does not assume the risk of dangerous work, if, after protest, he undertakes the work, believing, in reliance on the superior knowledge of the master or his foreman, that he can perform it safely; but if the servant proceeds with the work, knowing its danger, merely from a desire not to incur the displeasure of the master or his foreman, he assumes the risk.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Robert E. Pulley against the Standard Oil Company. Plaintiff had judgment, and defendant appeals. Reversed.

Frank Hagerman, for appellant. John L. Wheeler and John C. Nipp, for respondent.

ELLISON, J.

This is an action for personal injury received by plaintiff, and which he charges to defendant's negligence. He had judgment in the trial court.

It appears that plaintiff was engaged in defendant's service as a laborer. The evidence tended to show that the foreman, desiring a piece of iron pipe to be leaned from a freight car to the ground to act as a skid in unloading some freight, ordered plaintiff and two fellow laborers to carry it to the car, a distance of 20 or 25 feet. One of the others stated to the foreman that the pipe was "too heavy for three men to carry." The foreman replied for them to "go ahead, that three men were plenty, and, if we did not, he would discharge us and get men that would." Nothing further was said, and the men picked up the pipe; the plaintiff, at one end, in the lead, with the two others behind him, one at the center, and the other at the rear end. They took a few steps, when these two, the one at the center and the one at the rear end, found they would not be able to carry it, and without warning to plaintiff they let it drop. Plaintiff still holding up his end, the sudden dropping at the other end pulled or threw him down with such violence as to cause the injury of which he complains.

Questions as to whether the foreman was negligent in ordering only three men to carry the pipe, whether plaintiff assumed the risk in carrying it, and whether the injury was caused by the negligence of plaintiff's fellow servants, have all been discussed orally and in the briefs. If there was no negligence on the part of the foreman, then, of course, no liability has arisen, regardless of what might be thought of the two other questions. The master is not required to have infallible judgment, and he should not be held responsible for a mistake which the exercise of reasonable care, by a competent man, would not avoid. Otherwise he would be an insurer of the safety of the servant, and all agree he is not that. Furthermore, the master, in directing that a servant perform a certain service, has a right to assume that the...