Fleeman v. Bemis Bros. Bag Co.

BROADDUS, P. J. This is a suit to recover damages for an injury plaintiff suffered while in the employ of defendant. The' defendant is a corporation [598] engaged in the manufacture and sale of burlap- and other cloths. The injury was inflicted on the 27th day of October, 1908, while the plaintiff was working in the basement of defendant’s building. The plaintiff’s evidence was to the effect that there had been placecl against the walls of the building in a row about one dozen bales of burlap. These bales were 34 inches thick, 36 inches wide and 5 feet in length, and weighing about 1600 pounds, and were rounded at the corners. A man by the name of McPheeters was the defendant’s foreman who supervised the work and also at times did a part of it himself. It was usual when a bale was stood up on its end in the row to block it in position to keep it from falling with a piece of wood placed between the lower edge of the bale and the floor. It was, however, the invariable custom to so block the end bale in the row. On the top of these bales were placed bolts of burlap weighing 100 pounds. Shortly before plaintiff was injured McPheeters set a bale of burlap at the end of the row, but failed to secure it from falling by blocking it. The plaintiff and another workman while' working trucked a quantity of the bolts to the row in question and proceeded to pile them on the burlap. While so doing, and as he was reaching around to take a bolt from the truck, the said bale fell upon him and crushed him against the truck inflicting severe and lasting injuries. He did not know that the bale was unsecured, yet, he might have ascertained that fact by careful inspection, as there was sufficient light for that purpose, although it was shown that the light in the basement was not good. McPheeters was close by at the time and was directing the work. The floor of the basement was uneven which it is claimed was a contributory cause for the failure of the bale to stand when placed against the wall. It appeared that a great number of these bales were handled daily and there [599] were long rows of them; and that it was the business of McPheeters, the plaintiff, and two other laborers to put up and take down the bales. It was shown that some of these bales fell down daily. The defense was contributory negligence; that respondent assumed the risk of the employment; and that one of the risks was the liability that a bale would fall upon him. The appellant contends that as it was a part of respondent’s duty to set up and take down the bales in question, it was his farther duty to see that they were secure in their positions; and that as the bale was standing when he began placing the bolts on top of it, it was his duty before he commenced the work to see whether it was safe in its position, and, if not, to make it so. In a similar case this court holds that there was no evidence of a negligent breach of duty upon the part of the master to furnish his servant a reasonably safe place in which to do his work. [Dickinson v. Jenkins, 144 Mo. App. 132.] And it is said in another case by this court that: “We have not yet reached that stage in our jurisprudence where the entire care for the safety of the servant devolves on the master, and the safety of the servant is not to be entrusted to his own reasonable and independent action.” [Courter v. Mercantile Co., 136 Mo. App. 517.] It appears from tbe respondent’s own evidence that it was as much his duty as that of appellant to guard against danger, if any, to be anticipated from the fall of a bale, as it was that of the appellant. Idem. Furthermore, we hold that McPheeters’ act was that of a fellow-servant. It is said that: “It is the character of the negligent act itself which determines the relation of the actor to the injured servant; if the act be in the exercise of delegated authority the master is liable; if it arises from mere co-labor it remains the act of the servant.” [Stephens v. Lumber Co., 110 [600] Mo. App. 398.] There is no dispute but what it was McPheeters, the foreman, who while working at the business left the bale unblocked. This constituted him a fellow-servant and co-laborer so far as that act was concerned. But respondent contends that: “Where one acting in the dual capacity of vice-principal and fellow-servant to another makes' the working place unsafe by •his negligent act as fellow-servant, and then in his capacity as vice-principal orders the servant into the unsafe place, whereby the servant is injured, the master is liable to the injured servant.” And it is so held in Rigsby v. Supply Co., 115 Mo. App. 297; Mack v. Railway Co., 123 Mo. App. l. c. 530; Herdler v. Range Co., 136 Mo. l. c. 15. And this rule might apply were it not for the other rule as already stated, that it was as much the duty of the plaintiff under the circumstances to see that his place for work was reasonably safe as it was that of the master, and notwithstanding the negligent act of the foreman, respondent’s own contributory negligence forbids his right to recover. And it may be further said, that owing to the composition of the bales, and the circumstance that the workman, whose duty it was to put them up and take them down, it could not have been in the reasonable anticipation of the master that one of them would fall upon and injure one of the workmen as the plaintiff was in this instance. The result, it is true, has not suggested its probability in the ordinary course of events, yet, it was not impossible. For the reasons given the cause is reversed. All concur.