Sambos v. Cleveland, C., C. & St. L. R. Co.

• Decision Date: 15 December 1908
• Citation: 134 Mo. App. 460,114 S.W. 567
• Court: Missouri Court of Appeals
• Parties: SAMBOS v. CLEVELAND, C., C. & ST. L. R. CO.

114 S.W. 567

134 Mo. App. 460

SAMBOS v. CLEVELAND, C., C. & ST. L. R. CO.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

1. MASTER AND SERVANT (§ 287)—INJURIES TO SERVANT—QUESTION FOR JURY—NEGLIGENCE.

Where defendant's foreman roughly commanded laborers to throw a slippery tie on top of a finished pile of ties while plaintiff was stooping to start a new pile, and the tie so thrown fell back and struck plaintiff, whether the foreman was negligent in giving the order was for the jury.

2. MASTER AND SERVANT (§ 286)—INJURIES TO SERVANT—QUESTION FOR JURY.

If the evidence clearly justifies an inference by reasonable minds that the master failed to use due care for a servant's safety, the question is for the jury, though a contrary inference would also be justified.

3. MASTER AND SERVANT (§ 258)—INJURIES TO SERVANT—PLEADING.

In an action by a servant for injuries, the petition held to sufficiently allege that defendant's negligence was the cause of the injury.

4. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

In a servant's action for injuries sustained while piling ties, whether plaintiff was guilty of contributory negligence, held a jury question.

5. MASTER AND SERVANT (§ 203)—ASSUMPTION OF RISK—NEGLIGENCE OF MASTER.

A servant does not assume the risk of injury from the negligence of his master or his vice principal.

6. MASTER AND SERVANT (§ 189)—INJURIES TO SERVANT—FELLOW SERVANTS.

A foreman in charge of the work of getting ties out of a ditch and piling them, was not a fellow servant of one of the laborers under his direction.

7. MASTER AND SERVANT (§ 287)—INJURIES TO SERVANT—QUESTION FOR JURY—FELLOW SERVANTS.

Where the facts as to a foreman's duties are undisputed, and reasonable minds cannot differ in their conclusion therefrom, the question whether such foreman was a fellow servant of an employé under his control was one of law.

8. MASTER AND SERVANT (§ 217)—INJURIES TO SERVANT—ASSUMPTION OF RISK—NEGLIGENCE OF VICE PRINCIPAL.

Though plaintiff, a railroad laborer, knew that ties, which he and other laborers were piling under the direction of a foreman, were icy and slippery, he did not assume the risk of injury in being struck by a tie which slipped from the top of a completed pile on its being thrown there at the command of the foreman while plaintiff was stooping in the act of starting a new pile.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by George Sambos against the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Reversed and remanded.

Blevins & Jamison, for appellant. Geo. F. McNulty and J. R. Van Slyke, for respondent.

GOODE, J.

Plaintiff's right arm was broken in an accident which occurred December 26, 1906, near Flat Rock, a station on defendant's railway in the state of Illinois. Plaintiff was in the service of defendant, and, with some 30 laborers, was engaged on said date in stacking ties on defendant's right of way. Two tracks ran parallel at the point where the work was in progress—one the main line, which ran through a cut 12 feet deep, and the other a siding, or, as the witnesses said, a new track, which was on the top of the embankment. The ties were in the ditch by the main track, and were carried by the men to the top of the bank and piled there. Water commonly stood in the ditch, but it had frozen and the ties were covered with ice, which the men who lifted them from the ditch did not entirely clean off before throwing them on the stacks, and hence they were left slick and inclined to slip on each other. Steps had been made in the side of the enbankment, up which the men climbed, several of them carrying a single tie. The evidence tends to show these facts: The ties were ponderous and about a foot in width; they were piled in stacks from 8 to 9 feet high, about 6 feet either way at the base, narrowing toward a top about 2 feet wide, on which two ties rested. Plaintiff's particular task was to arrange the ties, when placed by other laborers on the stack, so they would lie straight. He was not performing this task when hurt, but, by direction of the foreman of the gang, who watched the work and controlled the manner in which it was done, was adjusting a tie that lay on the ground, and probably some 2 or 3 feet from the stack the men were working on, so as to start a new stack. That is to say, plaintiff was in the act of placing a single tie where a new pile was to be raised. He was doing this by order of the foreman, as said; but the order was not given by word of mouth, but by pointing, because plaintiff was a Greek who did not understand English. To carry out the order, plaintiff stooped over to move the tie into the right place, and, while he was doing this, some of the gang tossed another tie toward or on the top of the pile, which struck either on the top or about a foot and a half below; whereupon the pile toppled and the ties in it scattered, one of them falling on and breaking plaintiff's arm. When plaintiff stooped over, he supposed no more ties would be thrown on the pile from which he turned, because, as he swore, he considered it finished, inasmuch as the foreman had ordered him to start a new stack. The last tie, which caused the stack to tumble, was thrown on it in obedience to a special order of the foreman, who, with an oath, told the men who were carrying this tie to hurry up and throw it on the pile. The foreman had been in charge all along of the work of getting the ties out of the ditch and stacking them on the bank, and his orders were obeyed by the men. The witnesses were examined minutely as to the circumstances of the accident, and though there are some discrepancies in their testimony, considered in its best phase for the plaintiff, it would prove the facts as we have narrated them. The petition, after giving substantially the same narrative regarding the particulars of the event, proceeds as follows:

"Plaintiff further states that he and the other employés of defendant who were then and there engaged in the work of handling and piling said ties were subject to and were required to and did obey the orders of defendant's said foreman, and said foreman had authority from defendant to direct each and every one of said employés in and about the said work, and at all said times did so direct them; that said foreman had authority to point out the place where said ties were to be piled, and to determine how many ties should be placed in the pile, and the width and height of the piles of ties, and that said foreman did direct plaintiff and the other employés in and about the said work, and had so directed them as...