Steinhauser v. Spraul

• Decision Date: 14 March 1893
• Citation: 114 Mo. 551,21 S.W. 859
• Parties: STEINHAUSER v. SPRAUL.
• Court: Missouri Supreme Court

21 S.W. 859

114 Mo. 551

STEINHAUSER v. SPRAUL.

Supreme Court of Missouri, Division No. 2.

March 14, 1893.

FELLOW SERVANTS — NEGLIGENCE — LIABILITY INTER SE.

Suit may be brought by a servant against the master's wife as fellow servant for injuries sustained in using, at the wife's bidding, a ladder known to the wife to be unsafe.

On rehearing. For former report, see 21 S. W. Rep. 515.

BURGESS, J.

It is urged that the court overlooked a question decisive of the case, in this: that the court overlooked the proposition of law raised by defendant's demurrer to the evidence, and did not consider the question of whether the act alleged to be tortious was a misfeasance for which a servant, which the petition alleges defendant was, could be held to answer in damages. In the case of Osborn v. Morgan, 137 Mass. 1, where the facts were that the general superintendent of a manufacturing corporation, whose works covered several acres of ground, and in whose employ were a large number of men, including plaintiff, designed for one of its mills a mechanical fixture consisting of a rail 16 feet above the ground, on which was a movable truck and chain. The rail was to go from one side of the building to the other. The machine was made too short, so that at one end it only came within 14 inches of the side of the building. The master builder put it up, and left it without a stop. After the mill had been running some time, a closet was built under the end of the rail, so that in fact, although it was not designed for this purpose, the truck could not get off of the rail while the closet remained, on account of the chain going against it. The day after the closet was made the general superintendent ordered the closet removed so far as it interfered with the movement of the truck, and while the plaintiff, a carpenter in the employ of the corporation, was engaged in this work, as directed by the master builder, the truck came off the rail, and injured him, and it was held in an action by him against the general superintendent for the injuries sustained that, even if the defendant was not liable for any negligence in the construction of the building or its appliances, the jury would be warranted in finding that the defendant, who was also an employe, failed in his duty to the plaintiff in ordering him to move the closet, without ascertaining whether the removal would be attended with danger, and that the action could be maintained. In the case of Rogers v. Overton, 87...