Robbins v. Olson-Schmidt Cost. Co.

• Decision Date: 10 November 1919
• Docket Number: No. 13331.,13331.
• Citation: 215 S.W. 779
• Parties: ROBBINS v. OLSON-SCHMIDT CONST. CO.
• Court: Missouri Court of Appeals

215 S.W. 779

ROBBINS v. OLSON-SCHMIDT CONST. CO.

No. 13331.

Kansas City Court of Appeals. Missouri.

November 10, 1919.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Suit by Isaac N. Robbins against the Olson-Schmidt Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Horace Merritt, of St. Joseph, for appellant.

Frank H. Miller, and Duvall & Boyd, all of St. Joseph, for respondent.

TRIMBLE, J.

This is a suit to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff was at the bottom of an excavation necessary to be made in the erection of a concrete bridge which defendant was constructing. His work was to dig earth and load it into wheelbarrows which were lowered into and removed from the excavation by means of a derrick. While so doing, the fastening of one of the guy ropes at the top of the derrick's upright or center pole broke, or came loose, causing the upright to fall over to one side, and allowing the wheelbarrow to fall back into the excavation striking plaintiff on the head and injuring him.

The proper construction of the derrick called for an iron ring in the hole at each of the four corners of a steel plate on top of the pole, and each of the guyropes was to be fastened in one of these rings. When the derrick was about to be constructed and set up (some ten days or two weeks before the accident), it was found that the rings had not been sent with the rest of the apparatus. Under the direct supervision and instruction of Armstrong the foreman, and Schmidt the secretary, of defendant; the derrick was erected, and in lieu of the above rings the foreman, after consulting with the secretary, used loops made of wire, and the ropes were tied into the wire loops thus made. These wire loops were not sufficient to stand the strain placed upon them by such heavy work, and it was the breaking of one of these that caused the accident.

The evidence in plaintiff's behalf disclosed that, after the erection of the derrick, but some days before the accident, one of these makeshift wire loops gave way, allowing the apparatus to fall, but even then the defendant did not put in iron rings, but merely added more wire to the loops. Plaintiff was not present when these loops gave way the first time, and knew nothing of it. Neither did plaintiff assist in the erection of the derrick or in the substitution of the wire for the iron rings.

The defendant's answer, in addition to a general denial, set up that, if plaintiff was injured, it was caused by the negligence of a fellow servant, who in a careless and negligent manner tied the wire loop, and by reason of the same being carelessly and improperly tied or fastened by plaintiff's fellow servant, the same pulled out or gave way. At the close of plaintiff's case in chief, however, the defendant amended the answer so as to read that, if the loop was carelessly and negligently secured, such was the work of plaintiff's fellow servant. After this amendment was made, defendant demurred to plaintiff's evidence, but was overruled, and the case was submitted to the jury, which returned a verdict for plaintiff in the sum of $1,000. Defendant has appealed.

Its main contention is that the negligence in this case was the act of the plaintiff's fellow servant, and that therefore plaintiff cannot recover. We must hold this contention against the defendant. Clearly the fellow-servant rule has no application. It is not a case where servants of a common master were working together, and one of them, in doing that work, injured the other through some negligent act; but it is one wherein the master directed certain of his servants to construct an appliance with which the master's work was to be accomplished. At the time of such construction, plaintiff was digging in the excavation, and never at any time had anything to do with the construction of such instrumentality, nor did his injury occur during the work of constructing the derrick. It occurred long thereafter and during the construction of the bridge. Nor was the injury caused by the negligent operation of the derrick, but by reason of the defective appliance made so by the foreman and secretary of the defendant negligently substituting wire for an iron ring. The fellow-servant rule, therefore, has no application herein. White v....