Sutherland v. Garetson-Greason Lumber Co.

• Decision Date: 07 July 1910
• Citation: 149 Mo. App. 338,130 S.W. 40
• Parties: SUTHERLAND v. GARETSON-GREASON LUMBER CO.
• Court: Missouri Court of Appeals

130 S.W. 40

149 Mo. App. 338

SUTHERLAND v. GARETSON-GREASON LUMBER CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. MASTER AND SERVANT (§ 85) — INJURY TO SERVANT — LIABILITY OF MASTER.

A master is not an insurer of the safety of his servant, and is not liable merely because the servant is injured while in the performance of the work assigned him.

2. MASTER AND SERVANT (§§ 101, 102) — INJURY TO SERVANT — LIABILITY OF MASTER.

A master need not exercise extraordinary care and adopt the safest or most approved appliances in conducting his business, but he may conduct his business in his own way, within the bounds of reasonable care.

3. MASTER AND SERVANT (§ 213) — INJURY TO SERVANT — ASSUMPTION OF RISK.

The risks of injury arising from a master conducting his business with reasonable care, though not according to the most approved methods, are assumed by the servants as a part of the contract of employment.

4. MASTER AND SERVANT (§ 125) — INJURY TO SERVANT — NEGLIGENCE — PILING LUMBER.

A servant in a box factory engaged in resawing lumber and in assisting in removing piles of resawed lumber was killed by the falling of one of the piles. The pile consisted of ordinary boards piled as lumber in lumber yards is ordinarily piled. It was four feet high and leaned toward another pile of about the same size. The servant and a fellow servant moved a small pile of lumber on the opposite side, and in doing so they pulled a board on which the pile had been placed and caused the pile to fall on the servant, causing his death. The foreman did not direct the servant how to pile the lumber at the time, and there was no evidence that he knew, or by the exercise of ordinary care might have known, that the fellow servant had stacked the pile on the board. Held, that the master, as a matter of law, was not guilty of actionable negligence.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Ivy Maude Sutherland, a minor, by her next friend, Sarah Fearnow, against the Garetson-Greason Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed.

Watts, Williams & Dines and Wm. R. Gentry (Wm. N. Barron, of counsel), for appellant. Abington & Phillips, for respondent.

GRAY, J.

Plaintiff instituted this suit in the circuit court of Butler county to recover damages for the killing of her husband, Otto O. Sutherland, on the 4th day of May, 1906, through the alleged negligence of the defendant. There was a trial before the court and a jury which resulted in a verdict and judgment for the plaintiff, from which the defendant duly appealed.

The facts in the case are few and practically uncontradicted. The unfortunate plaintiff has rather a remarkable history. She was married at 13 years of age. Her husband was killed the following year, and at the time this suit was instituted to recover damages for his death, she was not 15. The deceased was engaged in working in a large room in the second story of the defendant's box factory at the town of Fisk, in Butler county. The room was about 50 or 60 feet long, and 30 or 40 feet wide and a little to the west of the middle a saw was located, known as the "resaw," and its function was to resaw lumber that had been theretofore "flitched" from logs by another saw. Immediately east of the resaw was a track used for the purpose of conveying lumber from the north end of the room to the south. This track consisted of rollers with their axles inserted in parallel timbers some three feet apart. Immediately east of this track were three short parallel pieces of timber about 16 feet long and 4 feet wide, called "skids." The north ends of the skids were 12 inches from the floor and the south ends 18 inches. A part of the deceased's duties was to stand at the north end of the table containing the resaw and push boards through the same. Working with him was Seth Morgan, a fellow servant, whose duty it was to stand at the south end of the table and receive each plank as it came from the resaw, and place the same on the skids in question. On the day of deceased's death, and when they commenced work in the morning, there was a small pile of boards on the skids. There were about a dozen boards on that pile, and they were about 12 or 14 feet long and three-eighths of an inch thick. The men had been directed by the foreman of the defendant to pile lumber of the same dimension in the same pile. During the day there had been piled on the skids three additional piles of lumber. Just south of this small pile was a pile of lumber about 4 feet high, consisting of boards 12 and 14 feet long, 10 inches wide and three-sixteenths of an inch thick. Just south of this pile were two other piles of lumber consisting of boards five-eighths of an inch thick. The pile immediately south of the small pile looked as though it leaned to the south, and if it fell at all, would fall in that direction. It became necessary to have more room for the three-sixteenths stuff, and thereupon, Mr. Morgan called to Sutherland to come and assist him in moving the small pile of lumber to the north, and this they attempted to do by Sutherland taking hold of the boards at one end and Morgan at the other, intending to move the whole pile at once. One of the boards in the small pile protruded from the south side so that when Morgan piled the three-sixteenths stuff, the boards overlapped and were piled on the protruding board. As they started to move the small pile to the north, the pile immediately south toppled over and struck the deceased and knocked him against a roller, causing injuries from which he died on the same day.

The petition alleges "that the factory was under the supervision and control of a foreman by the name of Roy Case, who had complete control of the men and the management of the work in said factory; that the plaintiff's husband was in the employ of the defendant under the control and direction of said foreman, and that his duties were to resaw the lumber and to assist in removing the piles of said resawed lumber to make room for more lumber, and to do any other labor incident to the resawing of said lumber; that it was a part of the duty of the defendant to see that the lumber so cut or resawed was properly handled, and to exercise ordinary care and caution in stacking the same into safe, solid piles and to use precaution to prevent said piles from falling; that the defendant, by its servants acting under the direction of said Roy Case, carelessly and negligently stacked the said resawed lumber into a high and dangerous pile, and carelessly and negligently left said pile of lumber without braces or standards or any other device to prevent same from falling; that the deceased was compelled by reason of his work, to go near and to work near said high and dangerous pile of lumber; that on the 4th day of May, 1906, while deceased was moving some lumber aforesaid, said pile of lumber so negligently and carelessly stacked, fell suddenly and violently against the deceased and injured him so seriously that he died; that it was the duty of the defendant to furnish deceased a reasonably safe place to work, and that defendant knew, or by the exercise of reasonable care, could have known that the lumber piled as aforesaid, was dangerous and liable to fall, and that the death of plaintiff's husband was occasioned by the negligence and carelessness of the defendant in stacking said pile of lumber, and leaving the same without braces." The answer consisted of a general denial and pleas of contributory negligence and assumed risk.

We will first consider defendant's demurrer to the evidence and if we find the evidence was not sufficient to make a prima facie case for plaintiff, then the necessity of making an examination and passing upon the other questions presented will be obviated.

It is not necessary to cite authorities in support of the following propositions: A master is not an insurer of the safety of the servant and is not liable merely because the servant is injured while in the performance of a task assigned to him by the master; and the master is not bound to exercise extraordinary care, and neither is he required to adopt the safest or most approved methods of conducting his business. Within the bounds of "reasonable care," he may conduct his business in his own way, and the risks of injury from such methods are risks assumed by the servant as a part of the contract of employment.

With these well-settled rules for our guidance, is the appellant liable under the facts in this case? Seth Morgan, who was working with the deceased at the time of the injury, testified as follows: "Q. Tell the jury, Mr. Morgan, in your own language, just how that thing occurred. A. It was about ten minutes before 12 o'clock. We were fixing to move some lumber that was piled there by the resaw. It is our duty to move off the lumber. There was a pile piled up that seemed like it was going to fall towards the south, and there was a small pile that Mr. Case had told us to keep separate down here, that it kind of piled upon a little. We never noticed that, and...