Schmelzer v. Central Furniture Co.

• Citation: 134 Mo. App. 493,114 S.W. 1043
• Parties: SCHMELZER v. CENTRAL FURNITURE CO.
• Decision Date: 15 December 1908
• Court: Missouri Court of Appeals

114 S.W. 1043

134 Mo. App. 493

SCHMELZER v. CENTRAL FURNITURE CO.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

Rehearing Denied December 29, 1908.

1. MASTER AND SERVANT (§ 188) — FELLOW SERVANTS.

The power to employ and discharge workmen is not the only test by which to determine whether the relation of fellow servant or master and servant exists; it being the act and not the rank of the vice principal which determines whether two employés are fellow servants.

2. MASTER AND SERVANT (§ 189)—MASTER'S LIABILITY FOR INJURIES TO SERVANT — FELLOW SERVANTS — VICE PRINCIPALS.

A foreman in charge of certain floors of defendant's factory, with power to hire and discharge workmen, while engaged in taking out shelving on the fourth floor, directed an employé to throw boards out of the window, one of which boards struck and injured plaintiff, another employé, who was working in the yard below. Held, that the foreman was a vice principal, and not a fellow servant of plaintiff.

3. MASTER AND SERVANT (§ 170)—MASTER'S LIABILITY FOR INJURY TO SERVANT—TOOLS, MACHINERY, AND APPLIANCES — FELLOW SERVANTS — DUTY OF MASTER.

Ordinarily the master discharges his whole duty to the servant when he uses ordinary care in the selection of his fellow servants and provides suitable tools, appliances, etc., and, when he has done this, the servants must look to each other for protection in the performance of their several duties.

4. MASTER AND SERVANT (§ 164)—MASTER'S LIABILITY FOR INJURY TO SERVANT — DUTY TO WARN AND INSTRUCT — METHODS OF WORK.

A master who employed a competent servant to throw boards out of a window was not bound to instruct the servant, who knew that other employés were at work in the yard below, not to let the boards go before ascertaining that no one was beneath the window.

5. MASTER AND SERVANT (§ 234)—MASTER'S LIABILITY FOR INJURIES TO SERVANT — NEGLIGENCE—CONTRIBUTORY NEGLIGENCE.

Plaintiff, an employé, was engaged in moving lumber thrown from a window of defendant's factory, and, though he knew that more boards would be thrown out, stood under the window, and was struck by a board negligently thrown out by a co-employé without looking to see if plaintiff was below. Held, that the injury resulted from the concurring negligence of plaintiff and his co-employé, and that defendant was not liable.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by Frank Schmelzer against the Central Furniture Company. Judgment for plaintiff, and defendant appeals. Reversed.

Jones, Hocker & Davis, for appellant. Jas. J. O'Donohoe, for respondent.

BLAND, P. J.

Defendant owns and operates a large furniture factory at No. 2527 St. Louis avenue, in the city of St. Louis. In the rear of the factory is a large yard on which defendant stacks its lumber and other material. In the month of December, 1906, defendant was engaged in reconstructing the interior of the third and fourth floors of its factory by taking out the old flooring and shelving, and substituting new. Such old material as was unfit for use in the reconstruction work was thrown out of the windows into the yard and carried away and piled, or was carried into the furnace room for fuel. During the week prior to Monday, December 31, 1906, a considerable amount of old lumber had been thrown from the east window on the third floor into the yard, where it remained in a promiscuous pile. On Monday morning, December 31st, plaintiff and his helper, George Rund, were engaged in moving this pile of lumber. Plaintiff was throwing it back from the wall of the building, and Rund was carrying it off. John Koetting was the foreman of the third and fourth floors of the factory, and he and Bernard Kramer were at work on the fourth floor. Koetting was tearing down the old shelving, and passing the boards to Kramer. He handed Kramer a shelf board six or seven feet in length and about six inches wide, and Kramer asked him what he should do with it. Koetting replied that it was "no good," and to throw it out of the window. Kramer testified he shoved the board out of the fourth window from the corner, looked out, and saw plaintiff opposite the first window from the corner, and 28 feet away, and then threw the board so as to clear the windows below, that he then turned and received another board of the same dimensions from Koetting, and shoved it out of the same window; that he looked out just as he let the board go and saw plaintiff under the window in a stooping position, and hallooed to him to look out; that plaintiff straightened up and without moving from his tracks, looked up toward the window, and just at that moment the board struck on one end east of where plaintiff was standing, and rebounded, and struck plaintiff on the head and injured him. The action is to recover for the injury thus received; the petition alleging that the accident resulted from the negligent order of defendant's foreman and vice principal given to a co-employé of plaintiff. The answer was a general denial, special pleas of contributory negligence, that the injury was caused by the negligence of a fellow servant, and that plaintiff assumed the risk. Plaintiff had been in defendant's employ for 18 or 20 years and was a stockholder in the company. He was known as the "yard foreman," and worked in...