Rigsby v. Oil Well Supply Co.

• Decision Date: 17 March 1908
• Citation: 108 S.W. 1128,130 Mo. App. 128
• Parties: RIGSBY v. OIL WELL SUPPLY CO.
• Court: Missouri Court of Appeals

108 S.W. 1128

130 Mo. App. 128

RIGSBY v. OIL WELL SUPPLY CO.

St. Louis Court of Appeals, Missouri.

March 17, 1908.

1. APPEAL—REVIEW—SUBSEQUENT APPEALS— FORMER DECISION AS LAW OF THE CASE.

In an action for injuries to a servant, where, on a former appeal, it was held that, under the evidence, plaintiff was entitled to go to the jury on the questions of the foreman's negligence in ordering him to work in an unsafe place, and the superintendent's negligence in permitting lumber to be piled in a dangerous manner, and that alleged negligence of the foreman by which the lumber was caused to fall was the act of a fellow servant for which plaintiff could not recover, the fact that the record on this appeal does not contain evidence regarding the foreman's negligence in causing the lumber to fall did not constitute a material variance in the evidence on the two appeals, since, that issue having been eliminated on the first appeal, evidence thereon was unnecessary.

2. MASTER AND SERVANT—MASTER'S LIABILITY FOR INJURIES TO SERVANT—QUESTIONS FOR THE JURY—NEGLIGENCE.

In an action for injuries to a servant by defendant's negligence in permitting lumber to be carelessly piled, whether the injuries were caused by defendant's negligence in not using care to pile the lumber so it would not unnecessarily endanger employés working near it held, under the evidence, for the jury.

3. SAME—ACTS CONSTITUTING NEGLIGENCE.

In an action for injuries to plaintiff, while working in defendant's mill, by a pile of lumber falling on him, if the lumber was carelessly stacked so high that it was liable to fall at any time and on that account was dangerous to defendant's employés, such conduct was negligence.

4. SAME—ACTIONS—DUTIES OF MASTER—NEGLIGENCE — INSTRUCTIONS — MISLEADING INSTRUCTIONS.

In an action for injuries to plaintiff while working in defendant's mill, caused by a pile of lumber falling on him, a charge that defendant was negligent if the lumber was carelessly piled so high that it was liable to fall and on that account was dangerous to employés, in connection with another instruction that defendant was only bound to furnish reasonably safe appliances, was not misleading as telling the jury that plaintiff could recover if the pile was only slightly dangerous.

5. APPEAL — REVIEW—HARMLESS ERROR—INSTRUCTIONS —APPLICABILITY TO ISSUES.

In an action for injuries to plaintiff while working in defendant's mill, even though an

instruction assumed that plaintiff and the man working at another machine were not fellow servants, where the action was based on the negligence of the superintendent in ordering the lumber piled in a certain manner, such assumption was immaterial and harmless.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Jesse W. Rigsby against the Oil Well Supply Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm. N. Barron, for appellant. David W. Hill, for respondent.

GOODE, J.

This is an action for damages for a personal injury received by the plaintiff while working for the defendant in its mill or factory. In said establishment are manufactured sucker rods and other supplies made of wood for use in working oil wells. In the factory logs were sawed into boards or slabs from 1½ to 3 inches thick, and of varying lengths, of from 32 feet to 18 feet, or less. As these boards were taken from the saw, they were piled on stationary skids leading from the saw carriage to a machine called an "edger" on the same floor and some distance away. The use of the edger was to cut the boards into square strips 1½ to 3 inches in their dimensions. After these strips had been run through a finishing machine, they are ready for use in the oil wells. Plaintiff's main work was off-bearing the rods after they were finished or at the edging machine. But, when he was hired, he was told by Maddox, the superintendent of all the men on the floor, that he would be under the direction of Dallas Austin, who was foreman of the edging machine gang and had principal charge of said machine. Austin, as well as plaintiff, was under the control of Maddox, but the latter instructed him to help Austin whenever requested and to do as Austin ordered. In obedience to these instructions from Maddox, plaintiff, whenever he was called upon by Austin, would assist the latter and the members of the edging machine gang to lift planks from the piles of planks on the skids to the edger, and it was while doing such work he received the injury for which he seeks damages. The accident occurred in this way: Planks were piled on the skids in stacks from 3½ to 6 feet or more high. These stacks would topple over occasionally. As to how often the testimony varies. Some witnesses say the piles would fall two or three times a day; but others say they fell two or three times a week. Suffice to say the conclusion is fair that the stacks were unstable, and frequently toppled and fell. Plaintiff was called from his work of off-bearing by Austin to help lift a plank to the edger. Just as he stooped to pick up the plank a stack of planks fell against him, knocking him down, and breaking his leg. This case was here before, and all the facts are fully given in the former opinion. 115 Mo. App. 297, 91 S. W. 460. The appeal was from a ruling which forced plaintiff to take a nonsuit, and the inquiry was whether there was evidence from which the jury might have found his injury was due to the negligence of his employer, unmixed with fault on his part. The case was tried anew after the reversal of the judgment; the trial resulting in a verdict for plaintiff for $1,400 and the present appeal by the defendant.

It is contended for defendant the evidence in the present record is materially different from what it was before, but we do not accept this view. An attentive perusal of the record has convinced us the evidence now lacking, which was before us on the previous appeal, has no bearing on the questions to be determined. In the first decision we held plaintiff was entitled to go to the jury on evidence tending to prove, firstly, that Austin in his capacity of foreman, and not in his capacity of common laborer and fellow servant of plaintiff, had negligently ordered plaintiff into proximity to the insecure pile of lumber— that is to say, into a dangerous place and had thereby caused the injury—and tending to prove, secondly, the lumber was carelessly stacked under the immediate supervision and orders of Maddox, and without any...