Steffen v. Mayer

• Decision Date: 12 November 1888
• Parties: Steffen v. Mayer et al., Appellants
• Court: Missouri Supreme Court

9 S.W. 630

96 Mo. 420

Steffen v. Mayer et al., Appellants

Supreme Court of Missouri

November 12, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed.

Broadhead & Haeussler for appellants.

(1) There was no actionable negligence on the part of defendants shown. If there was inadvertence that does not constitute culpable negligence. Brown v. Railroad, 50 Mo. 461; Barton v. Railroad, 52 Mo. 253. (2) Where in an action founded on the negligence of defendant plaintiff's evidence shows that his own negligence directly contributed to produce the injury, he disproves the case alleged, and cannot recover. Buesching v. Gas Co., 73 Mo. 229; Flynn v. Railroad, 78 Mo. 195; Milburn v. Railroad, 86 Mo. 104. (3) A servant cannot recover damages of the master for injuries received while obeying the latter's order, if he had time to deliberate, and voluntarily and with knowledge of the peril placed himself in a position in which he was more than likely to be injured. Coombs v. Railroad, 102 Mass. 572; Sullivan v. India, 112 Mass. 396; Turner v. Railroad, 74 Mo. 602; McDermott v. Railroad, 87 Mo. 285. (4) The master is not liable to a servant for the negligence of a fellow-servant. Devitt v. Railroad, 50 Mo. 302; Thorpe v. Railroad, 89 Mo. 650.

Kerr, Gibson & Kerr for respondent.

Black J. Ray, J., absent.

OPINION

Black, J.

The plaintiff was a laborer at the defendants' foundry, and in general worked at the kiln, burning bone black. During a period of five years, he had often assisted in loading and unloading mills, when taken out for repair. On the present occasion a new mill, consisting of three pieces, came to the factory on defendants' wagon, drawn by a three-horse team. The road was muddy, so that the team had to stop one hundred and fifty yards from the mill and within fifteen or twenty feet of a railroad track. Whilst the plaintiff and others were unloading the mill, the horses became frightened at an approaching train and a part of the mill fell on plaintiff's foot, inflicting the injuries of which he complains.

The instructions given permitted a recovery by the plaintiff, if the defendants or their superintendent negligently failed to block the wheels of the wagon, or to have some one in charge of the team, or to detach the team from the wagon. The appellants insist that on the plaintiff's own showing he was injured by his own negligence and that of his fellow-servants; and for this reason ought not to recover. On this point the plaintiff testified: "Mr. Mayer (one of the defendants) told me to tell the driver to stop there; the driver came and said he knew where to stop. Mr. Hardesty, the super-intendent, called five of us and said 'be ready to unload that mill'; 'he told us to put the plank there and go to work.' He said 'go ahead and take it off,' that was all he said. We knew how to do the job. It was muddy. The wheels were not blocked; there was nothing to block them with; no one had charge of the horses; the driver was helping us; the traces were not unhitched. Hardesty was standing about five steps from us when the accident occurred, facing north; the train came from the north; I was facing south and did not see the train; horses were standing with heads to the south; no one had hold of the lines. As soon as the team started the wagon went forward; and took the board off with the mill which was on it; the mill fell on my foot."

Other evidence tends to show that Mayer was present at first and told the driver to unhitch his horses. He was not present when the accident occurred. One piece of the mill had been taken off, and it was the second piece which fell; the other one was unloaded at the factory. There is no evidence showing or tending to show negligence in employing the laborers, who were at work with plaintiff; nor can any fault be attached to defendants on account of what Mr. Mayer or Hardesty did do or say, and the fault on their part, if any, was one of omission.

The question is whether it became the duty of Hardesty to personally see to it that the wheels of the wagon were blocked, or the team unhitched, or that the driver remained with the horses. A person entering the employment of another takes upon...