Vannest v. Missouri, Kansas & Texas Rai;way Co.
| Decision Date | 13 June 1914 |
| Citation | 168 S.W. 782,181 Mo.App. 373 |
| Parties | WILLIAM VANNEST, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. B. G. Thurmond, Judge.
AFFIRMED.
Judgment affirmed.
J. W Jamison for appellant.
(1) Under a general employment, the master has the right to direct his employees to do any and all things within the scope thereof. He may entrust a servant to perform ordinary and simple duties incidental to his employment and resting on his knowledge and skill. Modlagl v. Iron & Foundry Co., 248 Mo. 587; Henson v. Stave Co., 151 Mo.App. 243; Cole v. Jones, 159 Mo.App. 472. (2) Negligence on the part of a master cannot be presumed from the mere fact of an accident and an injury. The burden was on the plaintiff to prove negligence. O'Malley v Railway Co., 113 Mo. 319; Yarnell v. Railway Co., 113 Mo. 570; Dowell v. Guthery, 99 Mo 653; Murray v. Railroad, 101 Mo. 236; Patton v. Railway Co., 179 U.S. 658; Vernon Cotton Oil Co. v. Catron, 137 S.W. 404; Wilson v. Railway Co., 62 S.E. 972; Wendall v. Railway Co., 100 Mo.App. 556. (3) The work was commonplace and, therefore, within the exception to the general rule that an employee never assumes the risk of injury by the master's negligence. Harris v. Railway Co., 146 Mo.App. 524, 157 S.W. 564. (4) Where a plaintiff was working beside a pile of pig iron or a pile of other materials and was permitted to choose his own place, proof of the falling of the iron, or other material, was not sufficient to prove negligence. Bowman v. Car & Foundry Co., 226 Mo. 53; Vernon Cotton Oil Co. v. Catron, 137 S.W. 404; Blundel v. Mfg. Co., 189 Mo. 552; LaBelle v. Inhabitants of Montague, 54 N.E. 859; Lewis v. Collier and Smith, 186 F. Rep. 403; Low v. Railroad, 165 Mo.App. 523; Mathis v. Kansas City Stock Yards Co., 185 Mo. 434; Bradley v. Tea & Coffee Co., 213 Mo. 320.
Scott & Bowker for respondent.
(1) The respondent, Vannest, although foreman of appellant's section crew and appellant's employee, Lucas, were fellow servants in performing the service they were engaged in at the time respondent was injured. Stephens v. Transfer Co., 110 Mo.App. 398; Fogarty v. Transfer Co., 180 Mo. 496. (2) The evidence in this case shows that the accident and injury to the respondent were due to the negligence of Lucas, the fellow servant of respondent. Briscoe v. Railroad, 130 Mo.App. 513. (3) A servant of a railroad company does not assume the risk of injury by the negligence of a fellow servant. Madden v. Railroad, 167 Mo.App. 143. (4) The attempted plea of contributory negligence in this case was insufficient and appellant was not entitled even to submit such an issue to the jury. Ramp v. Railroad, 133 Mo.App. 700; Stewart v. Railroad, 142 Mo.App. 322; Boders v. Railroad, 168 Mo.App. 172. (5) Even where contributory negligence is pleaded as a defense it is not error because plaintiff does not cover this defense in his instruction. It is the duty of the defendant to offer instructions on his defenses. If not properly pleaded, defendant is not entitled to instructions on such a theory, even if there was testimony tending to prove it. Boyd v. Railroad, 249 Mo. 110; Johnson v. Railroad, 150 Mo.App. 304; Collet v. Kulhman, 243 Mo. 585.
Plaintiff alleged that while engaged in helping throw ties out of a box car, he was thrown to the ground by the negligence of an assisting employee and alighted upon his head, receiving serious injuries for which he prayed judgment. He recovered judgment for $ 2000 and defendant has appealed.
The box car had a door on each side. Both of these were open. Two men were throwing ties from one door, and plaintiff and one, Lucas, were throwing them from the other. The ties in the ends of the car were laid lengthwise thereof, but, between the ties thus piled in each end, there were other ties laid crosswise and "criss-cross" of each other. The ties weighed about 150 pounds apiece and were eight feet long. The door of the car was not so wide.
It took two men to handle a tie. The method of so doing, adopted and agreed upon, was that plaintiff would first pick up his end of the tie, then Lucas would lift his end and come around with it until they were in proper position when, by a concerted movement, they would throw the tie out the door.
The testimony in support of plaintiff's case tended to prove that they had been working in this way for some time and had removed most of the "Criss-cross" ties in the middle portion of the car, though a few were still left. It further tended to show that without waiting until plaintiff had first secured his end of the tie but while plaintiff was stooping over to pick up his end and before he had done so, Lucas suddenly raised his end causing it to come against plaintiff "like a thousand of brick" and throw him out the door. Lucas knew plaintiff had only a small space immediately in front of the door in which to stand. He knew the method agreed upon to lift the ties and the order in which each end should be lifted. Without notice or warning he suddenly reversed that order without looking at plaintiff and unmindful of the effect such action might have upon his safety. This was a negligent act on his part for which his master was liable if it caused an injury to another. [Madden v. Missouri Pacific Ry. Co., 167 Mo.App. 143, 151 S.W. 489; Briscoe v. Chicago, Burlington and Quincy Ry. Co., 130 Mo.App. 513, 109 S.W. 93; Stubbs v. Omaha, Kansas City and Easton Ry. Co., 85 Mo.App. 192.] It certainly cannot be said as matter of law that it was not negligent. At least the questions whether it was negligent or not and whether the injury occurred and was brought about in that way were for the jury to settle.
Defendant urges that plaintiff was foreman in charge of the crew. We do not understand defendant to claim that this fact bars him of recovery, nor that as plaintiff and Lucas were working together they were not fellow servants. They were. [Madden v. Missouri Pacific R. Co., 167 Mo.App. 143, 151 S.W. 489; Stephens v. Deatherage Lumber Co., 110 Mo.App. 398, 86 S.W. 481; Fogarty v. St. Louis Transfer Co., 180 Mo. 490, 79 S.W. 664.] And defendant is liable for the negligent act of such fellow servant. [Sec. 5434, R. S. Mo. 1909.] Under that act the negligence of the fellow servant is the negligence of the master, and such negligence was not assumed by plaintiff. Defendant's objection, if we understand it, does not question the foregoing principles. The objection goes to the question of plaintiff's negligence in failing to provide for his own safety since he was in authority and could have looked out for that. The argument is that plaintiff could have made a safe place for himself to stand and failed to do so and having failed to take that precaution, he cannot recover. Defendant cites Modlagl v. Kaysing Iron etc. Co., 248 Mo. 587, 154 S.W. 752. This case has no application. Plaintiff's injury did not arise out of a defective appliance he was required to keep in order. Nor was it caused by the place where he worked being unsafe. The place was safe enough, and plaintiff would not have been injured but for the negligence of Lucas. Besides, we are unable to find any evidence in the record showing that plaintiff could have provided any safer place or better method. The ties had to be unloaded and that too through the door, and certainly those next to the door had to come out first, and to do this some one had to stand in the small space at the door. The work of getting them out was not dangerous. It became so only by reason of the negligence of Lucas.
It is further claimed that there is no evidence showing that the sudden and premature lifting of the tie caused it to go against plaintiff. We think there was. But if no witness had affirmatively so stated, yet the facts were all shown and the circumstances presented which showed a situation where the facts spoke for themselves as to what caused the tie to move forward and strike plaintiff....
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