Scherer v. Bryant
| Decision Date | 04 March 1918 |
| Citation | 201 S.W. 900,273 Mo. 596 |
| Parties | WILLIAM F. SCHERER v. HARRIET BRYANT and JOHN BRYANT, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. William O. Thomas, Judge.
Affirmed and remanded.
Harding Murphy & Harris for appellants.
(1) There was no evidence that the engineers were negligent. Therefore the trial court was right when it directed a verdict for the defendant, and was wrong when it sustained the motion for new trial. Breweries Co. v. Talbot, 141 Mo. 674; Weesen v. Railway, 175 Mo.App. 374; Fink v. Railroad, 161 Mo.App. 314; Cogan v Railroad, 101 Mo.App. 179; Press v. Penny, 424 Mo. 98; Dean v. Railroad, 199 Mo. 386. (2) Although the general servants of defendant Bryant, the engineers were at the time of the accident the servants of the R. W. Hodge Electric Company, and were therefore, plaintiff's fellow servants, and therefore the demurrer to plaintiff's evidence was properly sustained and the trial court erred in sustaining plaintiff's motion for new trial. Garvin v. Railway, 100 Mo.App. 617; Healy v. Range Co., 161 Mo.App. 483; Rourke v. Collier Co., 2 C. P Div. (L. R.) 205; Dunavan v. Laing W. & D. Const. Co., 1 Q. B. Div. 629; Hillsdorf v. St. Louis, 45 Mo. 94; Smith v. Railway, 85 Mo. 418; Breslin v. Sparks, 89 N.Y.S. 627; Cunningham v. Imp. Co., 46 N.Y.S. 954; Railway v. Manning, 146 S.W. 227; Oil Co. v. Anderson, 212 U.S. 218; Wolf v. Safe Co., 124 N.Y.S. 541; Worth v. Signal Co., 121 N.Y.S. 66; Brady v. Railway, 114 F. 100; The Elton, 142 F. 367; Parsons on Contracts, p. 114; 2 Cooley on Torts, p. 1007; Atwood v. Railway, 72 F. 455; Kane v. Const. Co., 202 Mass. 237; Higgins v. Tel. Co., 156 N.Y. 75; Powell v. Const. Co., 88 Tenn. 692; Byrne v. Railway, 61 F. 605. (3) The plaintiff was guilty of contributory negligence as a matter of law, and therefore the court's action in directing a verdict for the defendant at the close of plaintiff's testimony was right, and therefore in sustaining the motion for new trial court was wrong. Collett v. Kuhlman, 243 Mo. 585; Hecker v. Railway, 110 Mo.App. 162; Schiller v. Breweries Co., 156 Mo.App. 569.
James H. Harkless, Samuel M. Carmean and Charles L. Dort for respondent.
(1) The weight and sufficiency of the evidence on the question of contributory negligence are for the jury. State v. Chick, 146 Mo. 645; Railey v. Railway, 133 Mo.App. 473; Peck v. Traction Co., 131 Mo.App. 134. The inferences to be deduced from the facts in evidence are for the jury. Chouquette v. Barada, 28 Mo. 491; Primm v. Haren, 27 Mo. 205; Hutchinson v. Gate Co., 247 Mo. 71. The proximate cause of the injury was the negligent manner in which the engine was started and operated, and the failure of the engineers to perform the duties they had assumed, to run in the manner agreed and to stop at once upon signal. There is no evidence that plaintiff was guilty of any act which directly contributed to his injury. Contributory negligence is a matter of defence. If there could be but one inference drawn from the evidence, the case might be for the court, but the case is for the jury where the facts admit of different constructions or inferences. Powers v. Transit Co., 202 Mo. 267; Berry v. Railroad, 124 Mo. 223. Where men of reasonable minds might draw different conclusions from the evidence the case is for the jury. Baird v. Railway, 146 Mo. 265; Huth v. Dohl, 76 Mo.App. 676; Young v. Stevens, 66 Mo.App. 222; Voegeli v. Marble Co., 56 Mo.App. 485. A mixed question of law and fact is for the jury. Marshall v. Schrecker, 63 Mo. 308; O'Reilly v. Miller, 52 Mo. 210. When facts proved without dispute require the exercise of reason and judgment, so that one reasonable mind may infer that a controlling fact exists and another that it does not exist, there is a question of fact. Tousey v. Hastings, 194 N.Y. 79; Hirsch v. Jones, 191 N.Y. 195; In re Totten, 179 N.Y. 112. Where a person is injured as the result of an act done by him under an impulse or on a belief created by a sudden danger, he is not regarded as guilty of contributory negligence, even though the act would be regarded as a negligent one if performed under circumstances not indicating sudden peril. 26 Cyc. 1274; Wilson v. United Rys., 181 S.W. 19. Nor is a servant chargeable with contributory negligence in adopting a method of work which is usual and customary. O'Mellin v. Elec. Ry. Co., 115 Mo. 205. (2) Under the evidence in the case there is a question for the jury as to whose servants the engineers were. Whether or not it was not contemplated by appellant to furnish the engineers? Whether or not it was necessary co-operation? Whether or not such co-operation expedited the work and benefited appellant? Plaintiff is entitled to every reasonable inference before a case can be taken from the jury. 38 Cyc. 1516 (55); Hallett v. Brewing Co., 129 App.Div. (N.Y.) 617; Chouquette v. Barada, 28 Mo. 491; Primm v. Harren, 27 Mo. 205. The questions of intent and control of servants in this case involve an issue determining the mental attitude of appellant and are questions of the jury. Cox v. Knight, 49 Ala. 173; Bank v. Brewster, 30 Conn. 559; Murphy v. Murphy, 95 Iowa 271; Teague v. Maddox, 150 U.S. 128; Rucker v. Bolles, 80 F. 504. Whether an act was done under particular orders is a question for the jury. Brakebill v. Leonard, 40 Ga. 60. That the furnishing of power may have been gratuitous has no bearing to change the relationship of the parties. The Lisnecrieve, 87 F. 571.
OPINION
This is an appeal from an order granting a new trial after a directed verdict in an action respondent brought for damages for injuries received while aiding in banding an armature owned by appellants. Respondent was experienced in work of this kind. His employer, the R. W. Hodge Electrical Company, was repairing machinery used to generate electrical current for appellants' building. The armature was fixed upon an extension of the drive-wheel shaft of an engine in the same room. Appellants' regular engineers operated the engine when necessary to operate it in the progress of the repairs.
It is contended (1) there is no evidence of negligence; (2) respondent was guilty of contributory negligence; and (3) appellants are not liable for the negligence, if any, of the engineers.
I. In banding the armature it was essential that the wire be drawn very tight. It was first attached to the armature and then passed through a clamp fixed near by and designed to give the necessary tension. Respondent's duty was to "guide" the wire. This was necessary. He took the ten or twelve-pound loop or coil of wire and unwound ten or twelve feet of it, letting this loose wire lie upon the floor. He then stepped back thirty or thirty-five feet from the clamp and placed the coil upon his arms. In this situation the operation of the engine would cause the armature to revolve, the wire to be wrapped about it and the wire to be drawn through the clamp. As soon as the slack wire was drawn through the clamp the wire would commence to be drawn from the coil upon respondent's arm, and he could, if the movement were sufficiently slow, "guide" the wire, permitting it to unwind from the coil and keeping it straight and untangled as it passed through the clamp. On a previous occasion the engineers had shown they could so operate the engine as to revolve the armature a few inches and then stop it immediately. Respondent saw this done. When the banding of the armature was about to begin they were asked if they could so operate it as "just to turn it over." They said they could, and that they would; that they would run it as slowly as they could. They also said they could stop it immediately on signal and would do so. With respondent in the position mentioned, the signal to start the engine was given by respondent or his foreman. It was started suddenly and the armature commenced to revolve somewhat rapidly, taking up thirteen or fourteen feet of wire at each revolution. Respondent almost at once called to the engineers to stop the engine. This was not done until the armature had made several revolutions. Respondent, as the wire was drawn rapidly through the clamp, having called for the stop, approached the clamp, the coil of wire still upon his arms. It is a fair inference he could not unroll the wire as rapidly as it was being drawn through the clamp. When within a few feet of the clamp respondent perceived the stop was not going to be made and endeavored to disengage his hands from the coil. He was unable to do so in time, and his hands were drawn against the clamp and his fingers severed by the wire drawing them against the clamp and cutting through them. The sudden starting of the engine was due to the fact that when the start was made, the engine happened to be "on center" and considerably more than the usual power was necessary to put it in motion. Respondent was not aware of this. The engineers were. The failure to stop more quickly was due to the speed at which the engine was started and the shutting off of the steam so that the engine could not be reversed. This is the tendency of the evidence, viewed from respondent's standpoint.
It is true, except in cases of wanton wrong, there is no negligence if no reasonable man could have foreseen any injury from the act done. But it is not true that the particular injury must have been such it could have been foreseen. An act is negligent when in the circumstances some injury to some one reasonably may be foreseen as a reasonable consequence. This being shown, liability attaches "for anything which, after the injury is complete, appears to have been a natural and probable consequence." [Benton v. St. Louis, 248 Mo. 98, 154 S.W. 473, and cases cited.]
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