Levecke v. Curtis & Co. Manufacturing

193 S.W. 985, 197 Mo. App. 262, 1917 Mo. App. LEXIS 156

• Court: Missouri Court of Appeals
• Decided: April 3, 1917
• Status: Published

Opinion

REYNOLDS, P. J.

Action for damages claimed by plaintiff to have been sustained while in the employ of the defendant.

The petition avers that while in such employment at the factory of the defendant, and while acting under the orders of the foreman, assisted by two other workmen of defendant, he was raising up and fastening to a wall a certain motor ánd its attached equipment, all of the weight of several hundred pounds; that by reason of the negligence of the defendant it fell, coming down upon plaintiff with great force and injuring him as described in the petition. The negligence alleged is that defendant failed to furnish plaintiff with a sufficient number of competent workmen to assist in lifting and holding the motor and its attchments from the ground to the place to which it was to be attached, the defendant, as it is alleged, negligently and carelessly furnishing only two workmen to assist plaintiff in doing the work, when at least three workmen, in addition to plaintiff, were necessary to do it with reasonable safety to plaintiff and his fellow-workmen engaged in-the work, and that in consequence of the defendant’s negligence, in so failing to furnish a sufficient number of workmen, the motor and its attachments fell upon plaintiff and injured him.

It is further alleged that the two workmen assigned to plaintiff to assist, were weak and incompetent, incapable and careless, to the knowledge of defendant. As no evidence whatever was introduced on this phase of the petition and jt was not put to the jury on that theory, it is unnecessary to further notice this assignment.

Averring the expenditures of plaintiff for medical and surgical treatment, his loss of earnings in the past and that he will lose large amounts of wages in the future, and that by reason of his injuries he has been greatly incapacitated from carrying on his usual employment as a machinist, and that he has been permanently injured and disfigured and will suffer pain, etc., as long as lie lives, plaintiff demands judgment in the snm of $1500.00.

After a general denial the answer avers that at the time plaintiff claims he was injured, he was in charge of and had control of the workmen assisting him in lifting and placing the motor and its attachments, with full .power and authority to direct and control them, was well acquainted with the workmen who assisted him and with their strength and capacity and was at liberty to call to his assistance as many workmen as he needed to do the work, with which he was entirely familiar, and that he was furnished by defendant with all the men and help he requested, and that if he had insufficient help in handling the motor, it was due to his negligence in taking insufficint help, and that if he had insufficient help, he was negligent in selecting the same and in not requesting more help and in undertaking to place the motor as he did, and that plaintiff had negligently and carelessly ordered and directed his helpers and the men under him to hold the motor while he attemped to fasten it and negligently failed to place anything under it or to block it up, as he should have done; that after he undertook to place the motor plaintiff had ample notice that the servants under him could' not hold it by reason of the fact that they had an insufficient hold thereon, and by reason of the position in which they were placed and the length of time they had been holding it; that plaintiff had ample time to notice that these servants in charge of and working under him intended to let the motor down and that he had negligently failed to keep a lookout for his own safety after being so warned, and had negligently and carelessly permitted the motor to come down upon him. It is finally charged that whatever injuries plaintiff received, were due to his own negligence, directly contributing thereto, and on account thereof he cannot recover.

The reply was a general denial.

There was a verdict for plaintiff for $5000, hut' a motion for a new trial being filed, attacking the verdiet, among other grounds, as excessive, the court directed a remittitur of $1500, to which plaintiff assenting, judgment was entered for $3500, and the motion for a new trial was overruled, defendant excepting and perfecting its appeal.

The first contention of learned counsel for appellant is that the demurrer to the evidence should have been sustained on the ground that plaintiff had not made out his case.

A careful reading of the testimony leads us to the conclusion that there was substantial evidence warranting its submission to the jury.

It appears that the appliance being handled was a motor and its appliances, weighing, according to some witnesses from three hundred to. three- hundred and fifty pounds, according to others, from, five hundred to six hundred pounds," the whole machine called a “converter,” attached by screws to a wall of the building of defendant in what was called the “crane department.” This converter was out of order and plaintiff, who was a skilled machinist, at about three thirty o’clock in the afternoon of the day of the accident, was ordered by his immediate superior, the foreman of his department, to take the appliance down, repair it and put it back in place, even if he had to stay after quitting time and finish the job; that it had to be done; that he should stay until he finished it, even if he had to stay all night; to stay until he got it done. He took the appliance down, made some repairs on it and set it back, then having the assistance of four or five men. It still did not work and plaintiff again took it down to remedy the defect. Doing that, he was ready to again put it up. This was about quitting time — about five thirty o’clock, and it was then that the foreman gave him the orders to finish it, even if it took him all night. The appliance when down rested on a plank about eight feet long and eight inches wide, being raised high' enough from the floor to allow the men to take hold under the plank. Plaintiff then, as it seems, had but two helpers. He told the foreman of this department that it would take more than that to help. When the foreman told plaintiff he must finish the job, even if it took all night, plaintiff told this foreman that the two men left with him would not be enough help; that it had required five men to take it down and that he might have to take it down again. The foreman told plaintiff to go back into the engine room and get the assistant engineer and another man, who was about the place, when he needed help. All the other hands had then quit and had left the place.

It does not appear that the superintendent, foreman, or any superior to the plaintiff, had told any of the other men to remain after closing hours and assist plaintiff. When plaintiff undertook to replace the appliance in position, by direction of the foreman, he went to the assistant engineer of the works, who was in charge at night, and asked him to help him. That man refused because of his duties connected with his own work, he being in charge of the electric appliances, lights, and things of that kind' about the building. Plaintiff sent one of his helpers to ask the two other men, who had assisted him in the fore part of the day, but who were in another department, to help him, but they refused. No other employees of defendant were then about the premises. Plaintiff thereupon undertook, with the assistance of the two men with him, to hoist this appliance into position so that it could be 'screwed on to the wall. The two men, with plaintiff, lifted the converter up, one of the two men on each end of the plank on which the appliance was resting. They lifted it to enable plaintiff to work at screws which were to be used in attaching it to the wall, but one of them called out that he could not hold it any longer and let it down. It caught plaintiff about at his middle, he being in a stooping or sitting position in front of it, and inflicted the injuries of which he complains. Plaintiff testified he had no authority to hire or discharge men and no authority to go to order any one to help, and that the men the foreman told him to call on, refused to help. As he was ordered to finish the job that night he concluded he would have to do it himself with tlie men he had; he thought “he would be careful.” He accordingly attemped to put the appliance in position with the' help he had, when it fell and caught him.

This is the substance of the evidence. We think it sufficient to take the ease to the jury.

Plaintiff’s duties did not impose upon him that of hiring or employing men, and it is clear that he had no authority to compel others to assist him. While in charge of this particular job under and by direction of the foreman of his department, he had no authority over men not immediately working with him.

Labatt on Master & Servant (2 Ed.), vol. 3, p. 2912, sec. 1107, says:

“A duty of the master which, as a matter of logical arrangement, it seems equally appropriate to associate either with that discussed in the foregoing sections, or with that of conducting the business upon a safe system . is the duty of employing a staff of servants sufficiently large to perform the work with reasonable safety to themselves.” (The matter referred to as ‘ ‘ discussed in the foregoing sections, ’ ’ relates to the employment of incompetent servants.) Among the many cases cited in support of this are Meily v. St. Louis & S. F. R. R. Co., 215 Mo. 567, 114 S. W. 1013; Craig v. Chicago & Alton Ry. Co., 54 Mo. App. 523; McMullen v. Missouri, K. & T. Ry. Co., 60 Mo. App. 231; Jackson v. Old Dominion Mining Co., 151 Mo. App. 640, 132 S. W. 306.

The same author, in vol. 4, p. 4494, sec. 1503, says:

“Another absolute duty is that of seeing that the number of persons employed is sufficient to prevent each of them from being exposed to that class of risks which results from an inadequacy of the force available for the work in hand. . Where no employee at all has been assigned for the performance of a duty connected with' the operation of machinery, the master cannot take advantage of the rule that the neglect of an employee who is furnished with the means and conveniences for keeping machinery in proper condition for safe operation, and charged with that duty, is not chargeable to the master in case of an injury to another employee.”

What the author refers to as the leading case under the doctrine announced in the first part of this section 1503, as above, is that of Flike v. Boston & Albany R. R. Co., 53 N. Y. 549. In that case plaintiff’s intestate was a fireman upon a freight train of the defendant’s road and was killed while in the operation of the train. The defendant company had an agent, called a head conductor, whose business it was to make up the trains, hire and station the brakemen and generally prepare and dispatch the trains. It was claimed by counsel for the appellant that the company was not liable because the superior had in fact employed a third brakeman to go upon this train upon which plaintiff’s intestate was a fireman when the accident occurred, but this third brakeman, by reason of oversleeping, failed to get aboard in time, and it was contended that the injury must be attributed to the negligence of this third brakeman, or, if attributable to the negligence of the general agent of the railroad company in not supplying his place with another man, such negligence must be regarded as committed while acting in the capacity of a mere co-servant, within the doctrine of irresponsibility. The New York Court of Appeals, however, held neither of these positions tenable, the court saying (l. c. 554):

“The hiring of a third brakeman was only one of the steps proper to be taken to discharge the principal’s duty, which was to .supply with sufficient help and machinery, and properly dispatch the train in question, and this duty remained to be performed, although the hired brakeman failed to wake up in time, or was sick, or failed to appear for any other reason. It was negligent for the company to start the train without sufficient help. The acts of (the head conductor) cannot be divided up, and a part of them regarded as those of the company, and the other part as those of a co-servant merely, for the obvious reason that all his acts constituted but a single duty.”

The principle announced in that case is applicable here. The superintendent over plaintiff told him to get other help but that other help was not within his control, and when he called on the men designated, they refused to assist, all of them at the time engaged in other duties. None of them had instructions from their immediate superiors to respond to plaintiff’s demand and plaintiff had no control over them.

But it -is argued that it was the duty of plaintiff, before undertaking to go on with the work, to have notified his superior that he had not sufficient help there; that the men to whom he had been referred declined to assist him. We do not think that is so. In the first place, a master who has entrusted to his superintendent the duty to hire a sufficient number of servants, is responsible for his failure to do so. [Shaw v. Highland Park Mfg. Co., 146 N. C. 235.] He could not shift the responsibility to do this upon another.

In Brown v. Rome Machine & Foundry Co., 5 Ga. App. 142, it is held:

“One of the non-delegable duties of a master is to furnish an adequacy of competent servants to do the work in hand.”

Our Supreme Court, in Haviland v. Kansas City, P. & G. R. R. Co., 172 Mo. 106, l. c. 112, 72 S. W. 515, says:

“When the work requires men to do it, the men engaged therein are classed as appliances, citing authorities. As in the matter of- ‘ appliances ’ the employer cannot shift his duty to provide reasonably safe ones, so he .cannot shift his duty to furnish a reasonable number of men. Then again, plaintiff was under imperative orders to complete this particular piece of work if it took all night. While knowing that' there was some risk in attempting it with the two men he had at his disposal, the risk was not so apparent or obvious as to justify plaintiff in neglecting or refusing to do it and so run the chance of being discharged for failure to obey orders. There was no risk present sufficient to warn any ordinarily prudent man of its danger in undertaking it with the force left at his disposal, nor to warrant him in refusing to obey the imperative order to finish it, “even if it took all night.” Plaintiff may well have thought, as an ordinarily prudent man, and under stress of this command, as he apparently did, that he and the two men who were at his disposal, with proper care could do the work, and so he testified. [See Thorpe v. Missouri Pac. Ry. Co., 89 Mo. 650, l. c. 665, 2 S. W. 3.)

The principle governing the liability of the employer to his employee and the contributory negligence of the employee has been announced by our Supreme Court in many cases, as see Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Hannibal & St. J. Ry. Co., 96 Mo. 207, 9 S. W. 589; Shortel v. City of St. Joseph, 140 Mo. 114, 16 S. W. 397. These cases are extensively quoted from and applied by our court in, Fogus v. Chicago & Alton R. R. Co., 50 Mo. App. 250. In this latter case the plaintiff, it is. said, was admittedly an expert in doing that kind of work, but, says our court (l. c. 263), “it must be kept in mind that he was in a subordinate position to the defendant’s foreman.”

So that if the plaintiff in the case at bar was himself a superior, as claimed by appellant, so far as concerns the two men working with him, or so far as the manner of doing this particular work was concerned, he was acting, in doing it, under the orders of a superior. Even if he was an expert, and in a way a vice-principal, • as urged by learned counsel for appellant, the duty to employ sufficient men was as we have seen, non-delegable, and we do not think that when the workmen refused to assist him, it was the duty of plaintiff to report that fact to the employer and to neglect to go ahead with the work with insufficient help. No employer or superior to him was present; no other men had been placed under his orders or directed to assist him, and the woik was not so obviously dangerous as to warrant him in refusing to do it, when he was distinctly ordered to see that it was done, even if it took all night to do it.

Learned counsel for appellant attacks the action of the trial court in giving three instructions at the instance of plaintiff and in refusing two asked hy defendant. We have carefully considered these instructions and find no error in those given.

Especial complaint is made of instruction No. 6, given at the instance of respondent, which is as follows:

“Although the jury may believe from the evidence in this case that the work of lifting up the motor mentioned in the evidence, and attaching it in place, was unsafe and dangerous in the manner in which plaintiff and his two fellow-workmen were, doing it, and that plaintiff was apprised of this' fact, yet if you shall further find from the evidence in this case, that the danger and hazard of the undertaking in which plaintiff was engaged at the time of his alleged injuries as described in the evidence was not of such an imminent and threatening character as- to prevent a reasonably prudent person from undertaking the same, then the plaintiff did not assume to do said work at his own peril, and was only required to exercise ordinary care and prudence incident to the situation and the character of the work required.”

Counsel attack that as in conflict with the holding of our Supreme Court in Bradley v. Chicago, M. & St. P. Ry. Co., 138 Mo. 293, 39 S. W. 763. The instruction there condemned told the jury (l. c. 301) that plaintiff could recover, “unless the jury further believe from the evidence that the condition of the embankment, around which plaintiff was working, was such as to threaten such glaring, apparent and immediate danger that a person of ordinary care and prudence would have refused to work around it under the circumstances.” Commenting on this instruction, pur Supreme Court, in the Bradley case supra, at page 310, condemns it for the ■ inclusion of the words we have italicized, saying they did not declare “the rule that would govern a man of ordinary prudence under the circumstances in this case. "What a reasonably prudent person would have done is the proper test of the character of the acts of plaintiff.” We find no such words as those condemned in the above in the instruction given. We think it a correct statement of the law here applicable and as laid down by our Supreme Court in the Bradley and many subsequent cases.

Nor do we find any error in the action of the trial court in refusing several instructions asked by appellant. In brief, we think that this was a case for the jury under the evidence; that the jury were properly instructed, and that there was substantial evidence in the case sustaining the verdict.

The learned counsel for -appellant attacks the verdict as being so excessive as to show prejudice and passion and that even after the remittitur ordered by the defendant that verdict is excessive. We do not think that a consideration of the evidence as to the injury to plaintiff and the probability of its permanency and the certainty that it has diminished his earning capacity, warrants us in saying that the verdict as rendered by the jury was so excessive as to show bias and prejudice. Nor do we think that as it now stands it is excessive. The question of the amount of the verdict was fairly presented to the learned trial judge, and with his knowledge of the evidence in the case, he permitted it to stand for $3500. We are not disposed to interfere with the exercise of this discretion of the trial court.

The judgment of the circuit court is affirmed.

Allen and Becker, JJ., concur.