Scobey v. Allen Cooperage Co.

• Decision Date: 14 January 1922
• Parties: J. T. SCOBEY, Respondent, v. ALLEN COOPERAGE COMPANY, Appellant
• Court: Missouri Court of Appeals

236 S.W. 686

210 Mo.App. 301

J. T. SCOBEY, Respondent, v. ALLEN COOPERAGE COMPANY, Appellant

Court of Appeals of Missouri, Springfield

January 14, 1922

Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.

AFFIRMED.

Judgment affirmed.

Ely & Pankey for appellant.

(1) There was no testimony that respondent was an employee of Allen Cooperage Company, and that the relation of master and servant existed. Morgan v. Bowman, 22 Mo. 538; Long v. Moon, 107 Mo. 334; Benjamin v Metropolitan Street Ry. Co., 133 Mo. 274; Carter v Berlin Mills Co., 58 N.H. 52; 22 Am. St. Rep. 459-463; 33 Am. St. Rep. 692; Frye v. Hobert-Lee Tie Company, (Jan. 1, 1921) 226 S.W. 962. (2) There is no evidence in the record showing that the appellant was guilty of any negligence that caused the injury to the respondent. (See Abstract of the Record). Williams v. St. Joseph Artesian Ice and Cold Storage Company, 214 S.W. 388 (1919); Yarbrough v. Wisconsin Lumber Co., 211 S.W. 713, l c. Col. 1--714 (1919); Frye v. Hobert-Lee Tie Co., (1921) 226 S.W. 962 (not officially reported, found in advance sheets of S.W. Reporter, February 23, 1921; Brighwell v. Lusk, 194 Mo. 643, l. c. 649, 189 S.W. 413; American Brewing Assn. v. Talbot, 141 Mo. 674, l. c. 683, 42 S.W. 679; Foley v. McMahan, 114 Mo.App. 442, l. c. 445, 90 S.W. 113; Hysell v. Swift & Co., 78 Mo.App. 39; Glover v. K. C. Bolt and Nut Co., 153 Mo. 327, 55 S.W. 88. (3) If the relation of master and servant existed, there was no proof of negligence. Frye v. Hobert-Lee Tie Co., 226 S.W. 962 (not officially reported, but found in advance sheets, S.W., February 23, 1921).

A. L. Harper and McKay & Jones for respondent.

(1) There was testimony that respondent was in the employment of appellant, and that the relation of master and servant did exist, which made it a question of fact to submit to the jury and the verdict is binding on appellant. Cannon v. Laclede Gas Light Co., 145 Mo. 502; Kellar v. St. L. Butchers Sup. Co., 229 S.W. 173; Smoot v. Kansas City, 194 Mo. 513. (2) Contracts of employment are subject to the same rules of construction as other contracts, and whether or not the relation of master and servant existed in this cause is a question of fact and is to be proved as other questions of fact. 26 Cy. 969, 971; Jewell v. Bolt & Nut Co., 231 Mo. 176. (3) Appellant is estopped to deny that a contract of employment existed between it and respondent by his conversation with respondent prior to his beginning the work at which he was engaged at the time of his injury. Cornvall v. Gauser, 85 Mo. 678; State Bank v. Frame, 112 Mo. 502. (4) Negligence is not a fact which is susceptible of direct proof, but an inference from fact put in evidence. When the facts are undisputed as in this cause, the question of whether an inference of negligence can be deduced is one of fact for the jury under proper instructions from the court. Hall v. Land Co., 173 Mo.App. 557; Hollweg v. Bell Tel. Co., 195 Mo. 149; Dean v. Railroad, 199 Mo. 386; Burton v. St. Louis, 248 Mo. 110; Lowe v. Railroad, 165 Mo.App. 542.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

--This is an action for damages for personal injury. On trial below before the court and a jury, plaintiff obtained a judgment for $ 600, and from this judgment defendant appealed.

Plaintiff with one Wilbanks was engaged in cutting stave timber. They had cut a tupelo gum, something like eighteen inches or two feet at the butt, and about a forty foot tapering body. The tree did not clear the stump, which was about two and one-half or three feet high, nor did it fall entirely to the ground, but lodged against three trees in such manner that there was considerable pressure transmitted to the body of the fallen tree. The three trees were up near the top of the fallen tree. Fastened at the stum and held firm near the top, the log of the tree was in a strain, as some of the witnesses expressed it. The tree had fallen so nearly down that it was low enough to saw, and plaintiff and Wilbanks with a six-foot crosscut saw started to saw off a log about twenty feet from the stump. Plaintiff was on the right hand side of the tree and was sawing right handed, his right foot and leg forward and next to the log. At the place where the log was being cut off the tree was a foot or eighteen inches in diameter. Before the saw was buried the log split or burst, and swung or fell towards plaintiff because of the pressure in his direction, and broke his right leg.

Plaintiff alleged that he was inexperienced in cutting timber and that he so informed Wilbanks, who, he alleged, was defendant's foreman. He also alleges that he informed Wilbanks that he would rely upon him to be on the lookout and warn him of any danger, and that Wilbanks promised and agreed to be on the lookout and to warn him of any danger. Plaintiff further alleges that he suggested to Wilbanks that the tree be removed from the stump before they attempted to cut the same into logs, but that Wilbanks stated that such was not necessary, that they could use wedges to prevent pinching; and relying upon the knowledge and skill of Wilbanks plaintiff alleges that he proceeded and was injured. Plaintiff follows these specific allegations with an allegation that it was defendant's duty to furnish him a reasonably safe place to work, and that it negligently failed to do so. The answer is a general denial.

Defendant makes two assignments: (1) That its request for a directed verdict should have been given at the close of the whole case; (2) that error was committed in giving instructions for plaintiff.

Plaintiff testified as to his inexperience, and his reliance on Wilbanks as he alleged in his petition. Concerning his employment plaintiff testified: "Well, he (Wilbanks) only met me and asked me where he could get a hand and I told him I wanted to work; I had no job, and he said he would like to hire me to saw--cut timber on Varner River, and I told him I was afraid, I never cut any timber, and he kept on insisting on me and I told him I would come out and help him if he would look out for the danger, that I was afraid; that I didn't know danger of the trees, and he said he would." Speaking of the situation and circumstances immediately preceding his injury plaintiff testified that before they began to saw the log he asked Wilbanks if it was dangerous, and that Wilbanks said: "No, we will follow it (the saw) with a wedge and chop it off underneath with an axe, and it will not be dangerous;" and that before they got the saw buried far enough to put a wedge in, the log burst and broke his leg. Plaintiff's case is bottomed upon the allegation that he was inexperienced, and suggested the possible danger from the log in its strained condition, and that Wilbanks stated in effect that there was no danger, and that relying upon Wilbanks he proceeded and was injured. Plaintiff's evidence tends to support this allegation. It is not alleged that Wilbanks was negligent in anything that he said or did, but the facts from plaintiff's view point are stated, and supported by the evidence, and these facts if true would tend to show negligence. Measured by a demurrer the situation is this: Plaintiff knew nothing about cutting timber; he so informed Wilbanks, and Wilbanks promised to look out for him. The tree where plaintiff was injured was in a strain and proved to be dangerous. Plaintiff sensed this danger, but was in effect assured by Wilbanks, an experienced timber man, that there was no danger. We cannot say in these circumstances as a matter of law that Wilbanks was wholly free from negligence or that plaintiff was guilty of any negligence that contributed to his injury or that he assumed the risk which he encountered. Neither contributory negligence nor assumption of risk is pleaded, but if either condition existed without question plaintiff could not recover, regardless of the failure to so plead. [Columbia Taxicab Co. v. Roemmich, 208 S.W. (Mo. App.) 859; Lumb v. Forney, 190 S.W. (Mo. App.) 988.]

As stated plaintiff did not allege that Wilbanks was negligent in anything that he said or did, except the general allegation that defendant negligently failed to furnish him a reasonably safe place to work. No point, however, is made against the petition. Negligence is not susceptible of direct proof, but is an inference from facts put in evidence. [Hoel v. Land Co., 173 Mo.App. 557, 158 S.W. 694.] In Callahan v. Warne et al., 40 Mo. 131, l. c. 136, it is written: "Negligence is a thing which by its very nature pertains to human conduct, and the action of the mind and will. It is something invisible, intangible, and for the most part incapable of direct proof, like sensible facts, or physical events. It is, in general a matter of inference from other facts and circumstances which admit of direct proof, and which may raise a presumption of the truth of the main fact to be proved. These facts and circumstances must be such as would warrant a jury in inferring from them the fact of negligence, by reasoning in the ordinary way, according to the natural and proper relations of things, and consistently with the common sense and experience of mankind."

Measured by the demurrer all of plaintiff's evidence must be taken as true, as well as every reasonable inference deducible therefrom, and the evidence on the part of defendant which is contradicted...