Ryon v. American Car & Foundry Company

• Decision Date: 05 July 1927
• Parties: ELIJA RYON, RESPONDENT, v. AMERICAN CAR & FOUNDRY COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

297 S.W. 430

220 Mo.App. 1142

ELIJA RYON, RESPONDENT, v. AMERICAN CAR & FOUNDRY COMPANY, A CORPORATION, APPELLANT.

Court of Appeals of Missouri, St. Louis

July 5, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

AFFIRMED.

Judgment affirmed.

Watts & Gentry for appellant.

G. A Orth, of counsel.

(1) The court erred in overruling the demurrer to the evidence at the close of the plaintiff's case, and again at the close of all the evidence in the case. (a) The sudden extinguishing of the lights, without proof as to the cause thereof and without proof of any notice to the master in time to correct the condition before plaintiff was injured, did not tend to prove negligence on the part of the master. Bailey v. Dry Goods Co., 149 Mo.App. 656; Dorney v. O'Neill, 34 A.D. 497. (b) The presence of various trucks, piles of lumber, machines and other objects in various places in the wood shop did not tend to show negligence on the defendant's part, for those objects were there in the regular course of business and constituted no source of danger whatever so long as the adequate lighting system customarily used was in use. (c) The alleged exclamation by the straw boss, "Hell men, let's get out; we can't tell how long we'll be here," did not constitute a negligent order on defendant's part affording right of recovery, for two reasons: First, it was uttered at a time when the straw boss had no control over plaintiff, the relation between him and plaintiff being severed by the completion of the day's work; and, second it was not an order of direction or requirement, but was a mere suggestion from one man to others, which they were at liberty to adopt or reject. (2) The court erred in giving of its own motion instruction No. 9, on the burden of proof. This instruction has been condemned twice by our Supreme Court. Hite v. Ry. Co., 255 S.W. 916; In re Trautman's Estate, 254 S.W. 286.

Foristel, Mudd, Hezel & Habenicht for respondent.

(1) There are two distinct and essentially different charges of negligence in the petition, (1) failure to exercise ordinary care to furnish a safe place, and (2) negligent order and direction to use the darkened factory as means of egress. The demurrer was general, and it was for that reason proper for the court to overrule it, if there was evidence tending to support the verdict on either of those charges. The demurrer should be ruled on the pleadings and the evidence without regard to the election by plaintiff of the issues upon which he will submit his case to the jury. Kenefick v. Insurance Society, 205 Mo. 294; Torrence v. Pryor, 210 S.W. 430; Sbiglio v. Lead Co., 243 S.W. 204; Schroeder v. Wells, 276 S.W. 60. (2) The duty of care on the part of the defendant to furnish plaintiff reasonably safe instrumentalities and place of work, extend equally to the way and means of exit from that place of work. 1 Labatt, Master & Servant, 235, sec. 100a; Jackson v. Butler, 249 Mo. 342; Hake v. Stove & Range Co., 234 S.W. 1061; Strobel v. Gerst Bros. Mfg. Co., 148 Mo.App. 22; Bailey v. Dry Goods Co., 149 Mo.App. 656. (3) "Charlie," the straw boss, on plaintiff's evidence (and so far as concerns the demurrer that evidence is conclusive), was the defendant's alter ego and represented the defendant in respect to its duty to furnish a safe place. 4 Labatt, page 4304, footnote 2; Schmeiser v. Furniture Co., 134 Mo.App. 493; Daharsh v. Railroad, 103 Mo. 570; Hagan v. Mining Co., 131 Mo.App. 386; Carter v. Baldwin, 107 Mo.App. 217; Hollweg v. Telephone Co., 195 Mo. 149; Burkhard v. Rope Co., 217 Mo. 466. (4) The act of "Charlie," the straw boss, in directing the plaintiff to grope his way through the darkened factory, instead of providing a light, was, with respect to its care or negligence, a proper question for the jury. Stubbs v. Am. Press, 254 S.W. 105; Wright v. Iron & Steel Co., 250 S.W. 942; Cox v. Granite Co., 39 Mo.App. 424; McCarver v. Lead Co., 268 S.W. 687; Plummer v. Ford, 208 S.W. 489; Stuart v. Standard Oil Co., 211 Mo.App. 345. (5) The knowledge of the straw boss. "Charlie," that the lights were out and of the consequent exposure of plaintiff to the danger of trying to grope his way out of the dark factory was knowledge of the master. Stubbs v. American Press, 254 S.W. 105; Boddenmueller v. Box Co., 237 S.W. 879; Banks v. Ry. Co., 40 Mo.App. 458; Morgan v. Zinc Co., 199 Mo.App. 26; Bailey v. Dry Goods Co., 149 Mo.App. 656. (6) The authority of the straw boss was incidental to and inherent in the plaintiff's relation to the defendant as employee and with that relation continued until plaintiff had had a reasonable opportunity to safely leave the place of work. Cases cited under Point 2; 39 C. J., p. 275, sec. 399; Perkinson v. Riley, 50 Kan. 401; Hehnke v. Thilmony, 107 Wis. 216; Ewald v. Railroad Co., 70 Wis. 420; Marshall v. U. R. Co., 184 S.W. 159; Arnold v. Graham, 272 S.W. 90; Flanigan v. Railroad, 276 Mo. 656.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.--

Plaintiff recovered judgment against the defendant in an action for damages resulting from injuries alleged to have been sustained whilst in the employ of the defendant. Defendant in due course brings this appeal.

Plaintiff's petition alleges that whilst in the employ of defendant, on the 8th day of December, 1924, at about five-thirty in the evening, which was the usual quitting time, the lights of the wood shop of the defendant company in which he was then at work, were extinguished, leaving the place in complete darkness; that the defendant's foreman in charge of its work and of the plaintiff, ordered, directed and required the plaintiff and other employees, during the time of said complete darkness in the factory, to walk out of the said factory and away from the said place of employment and to pass along and through said factory; that plaintiff, in obedience to said order was in the act of walking away from said place of employment and out of said factory when plaintiff struck against and came in sudden and violent contact with some object or objects in the said dark and unlighted place in said factory, resulting in severe and permanent injuries, "all as a direct and proximate result of the negligence and carelessness of the defendant, in the following respects:

"1. That defendant negligently and carelessly failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, in this, that said place in defendant's said factory where plaintiff was required to work, and where he was engaged and working, as aforesaid, contained, and had distributed about therein, a great number of solid objects, such as lumber piles, machinery, hand trucks and rubbish piles, and that after said lights there, as aforesaid, had been extinguished and 'gone out' as aforesaid, and when said place there in defendant's said factory was in complete darkness, defendant, by and through its said foreman, negligently ordered, directed, caused, suffered, permitted and required plaintiff to walk away from said place and out of said factory, during a time when said place in said factory was in complete darkness, and persons, particularly plaintiff, while so walking in, along and through said place in said factory, in going out of the same, was likely to strike against and come in sudden and violent contact with objects there in said dark and unlighted place in said factory, and injure him, all of which defendant knew, or by the exercise of ordinary care would have known.

"2. That defendant, acting by and through its said foreman, negligently and carelessly, ordered, directed, caused, suffered, permitted and required plaintiff to walk away from said place in said factory where he was engaged and working, as aforesaid, and to walk in, along and through said factory at said place therein, as aforesaid, during a time when said place in said factory was in complete darkness, as aforesaid, and when there was in said place solid objects, as aforesaid, placed and existing therein, as aforesaid, when defendant knew, or by the exercise of ordinary care would have known, that persons, particularly plaintiff, while so, as aforesaid, walking in, along and through said dark and unlighted place in said factory, as aforesaid, was likely to strike against and come in sudden and violent contact with said solid object or objects there in said factory, as aforesaid, and injure him, while he was so walking in, along and through said dark and unlighted place in said factory, as aforesaid, and that said place was not reasonably safe and was dangerous."

The answer was a general denial.

Plaintiff himself testified to the effect that he had been working about a month in the south end of the building known as the wood mill, which was under the general charge and supervision of a general foreman named Charles Siedler; that said Siedler took him to a man who was known as "Charlie" whose surname plaintiff did not know, and was told that he was to be his boss or foreman; that plaintiff worked in a gang with some ten or twelve other men, working as off-bearer around saws and planers under the straw boss "Charlie;" that in the building in question the electric lights were kept burning all through the day; that the usual quitting time was five-thirty in the afternoon, which time was indicated by the blowing of a steam whistle; that on the afternoon in question, when the whistle sounded the close of the work, the electric lights were burning just as usual. Plaintiff thereupon left the point at which he was working and went to a place about twelve feet north where he picked up his coat and was putting it on when the lights suddenly went out all over the plant, leaving it in total darkness. It was also dark...