Small v. Polar Wave Ice & Fuel Co.

• Decision Date: 31 December 1913
• Citation: 162 S.W. 709,179 Mo. App. 456
• Court: Missouri Court of Appeals
• Parties: SMALL v. POLAR WAVE ICE & FUEL CO.

162 S.W. 709

179 Mo. App. 456

SMALL v. POLAR WAVE ICE & FUEL CO.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

1. MASTER AND SERVANT (§ 185)—INJURIES TO SERVANT—FELLOW SERVANT—VICE PRINCIPAL.

A master's liability asserted on the ground of negligence of a servant occupying a dual capacity depends on the character of the act and not on the rank of the servant.

2. MASTER AND SERVANT (§ 201)—INJURIES TO SERVANT—NEGLIGENCE OF VICE PRINCIPAL OF FELLOW SERVANT.

When the negligence of a master, whether through the negligent act of a vice principal or otherwise, is combined with the negligent act of a fellow servant, the negligence of neither alone is the efficient cause, and the master is liable.

3. MASTER AND SERVANT (§ 190)—INJURIES TO SERVANT — VICE PRINCIPAL OF FELLOW SERVANT.

Plaintiff, an ordinary laborer, was ordered by his foreman to assist in letting down a heavy iron gate used to regulate the coal supply in defendant's boiler room. While so engaged

plaintiff's hand was in some manner caught in or under the apron and injured. Held, that the foreman, in ordering plaintiff to perform an unusual task disassociated from his ordinary duties, which involved dangers unknown to and unappreciated by him, was a vice principal and not a fellow servant for whose negligence, in failing to properly warn and instruct plaintiff, the master was liable.

4. TRIAL (§ 250)—INJURIES TO SERVANT—ACTION —ISSUES AND PROOF.

Where a servant in defendant's boiler room was injured by the alleged negligence of his foreman in directing him to assist in letting down a heavy iron gate used to regulate the coal supply, but it was neither alleged nor proven that the gate was in itself dangerous or unsafe, and defendant's duty to furnish a safe place to work was not an issue in the case, an instruction that it was defendant's duty to furnish plaintiff with a reasonably safe place to work, and authorizing a verdict on a finding that the gate was dangerous or unsafe, was erroneous as without the issues.

5. TRIAL (§ 252)—INSTRUCTIONS—APPLICABILITY TO THE EVIDENCE.

An instruction without evidence to support it, or based on facts which in no way gave rise to or contributed to produce the injury or loss for which a recovery is sought, is improper.

6. TRIAL (§ 232)—INSTRUCTIONS—PREDICATE —PLEADINGS OR EVIDENCE.

An instruction, in an action for injuries, requiring the jury to find that plaintiff's fingers were injured "as set out in the petition," in order to return a verdict for him, was erroneous, since the instructions must be predicated on the proof and not on the pleadings.

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

Action by Nat Small against the Polar Wave Ice & Fuel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Igoe & Carroll and W. R. Gilbert, all of St. Louis, for appellant. Wyrick & Eaken, of St. Louis, for respondent.

ALLEN, J.

This is an action by plaintiff for personal injuries received by him while in the employ of the defendant. The suit was instituted before a justice of the peace where plaintiff had judgment. Upon appeal to the circuit court and a trial de novo there, plaintiff again prevailed, and the defendant has appealed to this court.

The statement filed before the justice of the peace avers in substance that upon the date in question, while plaintiff was in defendant's employ, the latter's foreman ordered plaintiff to assist him in letting down a large, heavy iron gate or apron, used to regulate the supply of coal in the boiler room of defendant's ice plant in and about which plaintiff was employed; that while so engaged, under the direction of the foreman, the latter negligently lowered one side of said gate or apron, without warning to plaintiff, etc., whereby plaintiff's right hand was caught and injured.

The evidence discloses that plaintiff's duties, as a servant of defendant, were entirely separate and apart from anything pertaining to the gate or apron in question, and that he had never had anything to do with the latter except upon the occasion when he was injured. It is not altogether clear from the testimony just what was the character of this appliance, but it appears that it extended in front of a hopper and was used to regulate the coal supply; that it customarily hung upon two hooks; and that it was necessary to remove it in order to make a certain examination of the boilers. It appears that defendant's foreman, one Fuqua, called to plaintiff to assist him in letting down this gate or apron, which it is said was quite heavy; that the foreman had hold of a hook at one end of the appliance and directed plaintiff to raise a like hook at the other end thereof and assist in letting the apron down. It seems that plaintiff undertook to do this, but did not succeed in getting his end unhooked before the foreman let down the other end, whereby plaintiff's hand was in some manner caught in or under the apron and injured.

I. It is urged that the evidence adduced was insufficient to take the case to the jury, and that appellant's demurrer to the evidence should have been sustained. Appellant's argument on this score is based upon the theory that the evidence showed that plaintiff and Fuqua were, at the time, engaged in performing common labor, and that Fuqua's act in prematurely letting down his end of the apron was the mere negligence of a fellow servant, for which there could be no recovery. And in support of appellant's position in this regard we are cited to the rulings in English v. Shoe Co., 145 Mo. App. 439, 122 S. W. 747; Rodgers v. Schiele, 148 Mo. App. 53, 127 S. W. 618; Dickinson v. Jenkins, 144 Mo. App. 133, 128 S. W. 280; Stephens v. Lumber Co., 110 Mo. App. 398, 86 S. W. 481.

But we are not persuaded that the evidence adduced failed to show any right of recovery by plaintiff. It is quite true that "the doctrine is firmly established in this state, with respect to the master's liability asserted on the grounds of negligence in a servant occupying a dual capacity, to the effect that it is the character of the act, and not the rank of the servant, which determines the liability or nonliability in a given instance." English v. Shoe Co., supra; Mertz v. Rope Co., 156 S. W. 807, and authorities cited.

Nevertheless it is equally well settled that when the negligence of the master whether through a negligent act of a vice principal or otherwise, is combined with the negligent act of a fellow servant in producing the injury, and the negligence of neither alone is the efficient cause thereof, the master is liable. See Mertz v. Rope Co., supra, and authorities cited.

The situation here was not such as was presented in the above-mentioned cases upon which appellant relies. In English v. Shoe Co., supra, the injured servant and defendant's foreman regularly performed duties of a like character in working at a certain machine, though aside from such duties the foreman had certain authority over plaintiff and other employés. There the plaintiff's injury was caused purely by a negligent act of the foreman while working as a colaborer with plaintiff at the machine in question, and it was held that no exercise of any authority on his part in any way intervened.

In Rodgers v. Schiele, supra, the foreman and the injured servant regularly worked together in cleaning certain brass plates, and it...