Bokamp v. Chicago & Alton Railway Co.

100 S.W. 689, 123 Mo. App. 270, 1907 Mo. App. LEXIS 305

• Court: Missouri Court of Appeals
• Decided: March 5, 1907
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts). — 1. Defendant contends that as the evidence shows Dent was “a working foreman” and was working as a laborer when plaintiff was injured, under the laws of Illinois, he and plaintiff were fellow-servants, and for this reason defendant is not liable for Dent’s negligence, which the evidence show's caused the injury to plaintiff.

In Gall v. Beckstein, 173 Ill. 187, approving Beck-stein v. Gall, 69 111. App. 616, it was ruled: “A foreman who was assisting another servant of the master in lifting barrels of salt from a wagon, is, with respect to that employment, a fellow-servant with the other employee, and the master is not liable for his negligent acts which are not the result of any exercise of his authority as foreman.” At page 191, it is said: “The mere fact that the servant exercising such authority (that of foreman) sometimes, or generally, labors with the others as a common hand, will not, of itself, exonerate the master from liability for the former’s negligence in the exercise of his authority over the others. Every case, in this respect, must depend upon its own circumstances.”

In C. & A. R. R. Co. v. May, 108 Ill. 1. c. 298-9, the court said:

“The true rule on the subject, as we understand it, is this: The mere fact that one of a number of servants who are in the habit of working together in the same line of employment, for a common master, has power to control and direct the actions of the others with respect to such employment, will not of itself render the master liable for the negligence of the governing servant, resulting in an injury to one of the others, without regard to other circumstances. On the other hand, the mere fact that the servant exercising such authority, sometimes, or generally, labors with the others as a common hand, will not of itself exonerate the master from liability for the former’s negligence in the exercise of his authority over the others. Every case, in this respect, must depend upon its own circumstances. If the negligence complained of consists of. some act done or omitted by one having such authority, which relates to his duties as a co-laborer with those under his control, and which might just as readily have happened with one of them having no such authority, the common master will not be liable.”

The facts of the case in judgment bring it clearly within the doctrine of the latter case, and plaintiff cannot recover on the ground that his injury was caused by the negligence of Dent while performing the duties of a workman, and plaintiff’s right of recovery, if any he has, must be predicated upon one or the other, or both of the assignments of negligence in the petition, to-wit: that Dent, in his capacity as foreman, was negligent in removing the braces from the girders and in ordering the latter to be raised in' the manner he did, without any braces whatever, and that defendant was also negligent in faling to provide an adequate number of men to do the work.

2. The evidence shows that plaintiff was engaged on the ground at the end of the bridge, in framing ties to go on the bridge, during the time the other employees were dismantling the span; that he finished his work and so reported to Dent at the moment they were ready to raise the girders; that Dent ordered him to get a bar and help Switzer raise the end of one of the girders. Plaintiff, therefore, had no hand in producing the situation the girders were in, hut his evidence shows he was an experienced bridge builder, had been working on bridges for defendant something over a year, knew the exact situation of the girders and, like his co-employees, did not anticipate any danger. Nevertheless, the evidence tends to show, and the mere statement of the size, weight and situation of the girders, and of the manner adopted by Dent to raise them, indicates there was danger; that that might happen which actually happened, that is, that a bar might slip and if it did the pressure on the bar in the hands of the man on the opposite side would overturn the girder. The evidence shows it would have been an easy matter and would have taken but little time to have guarded against this danger, by passing a rope around the girder and making it fast to the rail above. Other simple methods of preventing the girders from upsetting were suggested by some of plaintiff’s witnesses. Dent, in his capacity as foreman, brought about the situation as it existed when plaintiff was injured and his acts in that regard were the acts of defendant. As representing defendant, it was Dent’s duty, if the work was hazardous, to take every reasonable precaution to insure the safety of plaintiff and the other employees, is the law in this State. [Keegan v. Kavanaugh, 62 Mo. 230; Haliburton v. Railway, 58 Mo. App. 27; Haworth v. Eailway, 94 Mo. App. 1. c. 224, 68 S. W. 111.] It follows that if there is substantial evidence that the work plaintiff was ordered to do was, in the circumstances, hazardous, and we think there is such evidence, did Dent use reasonable precaution to insure plaintiff’s safety? All the employees, who testified, stated they did not anticipate any danger from the manner in which they were doing the work. That they knew there was some danger of overturning the girders is conclusively shown by the fact that they undertook to prevent them from doing so, by holding to the girder with one hand while they pressed down on the bar with the other. Dent, with the rest of them, knew this danger was present, and the means that he and the men working with him used to prevent the girder from •upsetting proved to be inadequate. It is contended, however, that the unsecured condition of the girders was not the proximate cause of the injury, but that the proximate cause was the negligence of Dent in letting his bar slip. Many definitions of proximate cause have been attempted.

In Foley v. McMahon, 114 Mo. App. 1. c. 444,-90 S. W. 113, quoting from Deming & Co. v. Merchants? Cotton-press, 6 Pickle 353, it is said: “The proximate cause of an injury may, in general, be stated to be that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another, which had it not happened, the injury would not have been inflicted, notwithstanding the latter.”

In Haley v. Transit Co., 179 Mo. 1. c. 35, 77 S. W. 731, the Supreme Court said: “In the opinion of Mr. Justice Strong in Railroad v. Kellogg, 94 U. S. 469,1. c. 475, may be found, perhaps, as brief and yet as comprehensive an expression of the rule as can well be given. The learned justice there says: 'The question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?’ ”

The immediate cause of the injury was the slipping of Dent’s bar, but the allegations of negligence include more than the mere use of crowbars. The petition states in substance, that the defendant negligently furnished plaintiff an unsafe place to work, made so by removing the braces from the girders and the failure to put in temporary ones; that it negligently chose an unsafe way of doing the work, when a safe one could have been adopted, and that the. injury was the result of these concurring acts of negligence. The place to do the work, if unsafe, was made so by the order of Dent, as the representative of defendant and the mode of doing the work was chosen by him as its representative, hence his negligence, if any, as to these matters, was the negligence of defendant, and we are not prepared to* say, as a matter of law, that there is no substantial evidence tending to prove these allegations of negligence, and do not think the trial court would have been justified in granting defendant’s demurrer to the evidence on the ground that the injury was caused by the negligence of Dent while working as a coworker with plaintiff.

3. There is evidence tending to show the girder could have been prevented from turning over by placing two men at the opposite end to hold it while the men at the other end were raising it with bars. All the men present were engaged in raising the girders, except Mc-Allister, who, on Dent’s order, stood in front ready to push out the old blocks and insert the new ones as soon as the girders should be raised high enough to permit him to do so. On this evidence, we cannot say, as a matter of law, defendant furnished an adequate number of colaborers to assist in the performance of the work. The question was peculiarly one for the jury. [Supple v. Agnew, 191 Ill. 439.]

4. Defendant contends that plaintiff assumed the risk of being injured by the girder turning over. Obvious risks are presumed to* be known to the employee, and he assumes such as are open and obvious to a man of ordinary observation. [Montgomery Coal Co. v. Barringer, 218 Ill. 327; Consolidated Barb Wire Co. v. Mazwell, 116 Ill. App. 296.]

In Karr Supply Co. v. Kroenig, 167 Ill. 560, it is said: “The relation of master and servant imposes on the master no obligation to take better care of his servant than the servant may reasonably be expected to take of himself.” And the master is not liable, where the servant has equal knowledge with the master, or equal means of knowledge, of defects in tools, machinery, appliances or inadequate number of men to do the work, and is not compelled to do the work, following Goldie v. Werner, 151 Ill. 551.

In the more recent case of Western Stone Co. v. Musical, 196 Ill. 382, at pages 385-6, the court said:

“The rule that the servant assumes the ordinary risks incident to the business presupposes that his master has performed the duties of caution, care and vig-ilance Avhich the laAV casts upon him. It is these risks alone, Avhich cannot be obviated by the adoption of reasonable measures of precaution by the master, that the servant assumes;” and that an order from the master to proceed with the dangerous work would relieve the employee of the assumption of the risk, unless the danger was so manifest that a person of ordinary prudence would not have incurred it. And in Slack v. Harris, 200 111. 96, it is said: “A servant does not assume risks which may be obviated by the adoption of reasonable measures of precaution by the master, nor risks which are extraordinary, or extrinsic to the business, nor those of the master’s own negligence.” Other Illinois cases along the same lines might be cited, but these are sufficient to show that under the evidence, the court Avas not warranted in saying as a matter of law, plaintiff assumed the risk of receiving injury Avhile obeying the order of his foreman to do the work when, as the evidence shoAvs, the danger Avas’ not obvious and glaring and Avas not anticipated by any of the Avorkmen, and Avhere it appeared that the plaintiff might have reasonably supposed he could work with'safety.

5. The ansAver also pleads contributory negligence, and defendant contends that plaintiff had a thorough knoAvledge of the place where he was ordered to work and of the tool with which he was ordered to do the work, and as he did not object to the place or the tool, or make any suggestions to his foreman as to a safer method by which the work might be done, he was guilty of contributory negligence as a matter of law. Section 414, Wood on Master and Servant, is approvingly quoted in Goldie v. Werner, 151 Ill. 551 (p. 556), and in Howe v. Medaris, 183, Ill. 280, at page 290. The section reads as follows: “The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: First, that the appliance was defectivesecond, that the master had notice thereof, or knowledge, or ought to have had; third, that the servant did not know of the defect, and had not equal means of knowing with the master.” Plaintiff did not assist in removing the ties and braces from the girders, was not on the bridge when this work was done, and hence did not have equal means with Dent of knowledge of their condition. He was called upon suddenly to get a bar and assist in raising the girders. In these circumstances, we think, even if he did know the girders were not braced, he had a right to rely upon the superior knowledge of Dent and was not, as a matter of law, guilty of contributory negligence.

6. After the injury plaintiff was taken to Pontiac by Switzer, leaving but three men to work on the bridge. In the eross-examination of two of defendant’s witnesses, Hancock and Dent, plaintiff Avas permitted to prove, over the objection of defendant, that the girders were raised in safety with a rope and jack, the rope being-placed around the girders and fastened to the rail above. .The tendency of this evidence was to show an implied admission on the part of defendant, that the method adopted to raise the girders when plaintiff was hurt was a dangerous one, and also' to show that a safer method could have been adopted. The admission of this evidence was erroneous. [Howe v. Medaris, supra; Alcorn v. Railroad, 108 Mo. 81, 18 S. W. 188; Mahaney v. Railway, Ib. 191, 18 S. W. 895; Ely v. Railroad, 77 Mo. 34.] For error in admitting this evidence, the judgment is reversed and the cause remanded.

All concur.