Gayle v. Missouri Car & Foundry Co.

GANTT, P. J. This is an appeal from a judgment of the circuit court of St. Louis county for five thousand dollars. The action was for damages caused by personal injuries alleged to have been sustained by plaintiff through the negligence of defendant in negligently running what was charged to be a transfer car, in its car works, suddenly and violently against a piece of timber, the end of which was projecting over its track, and which piece of timber plaintiff and others were bringing across said track to the shed in which plaintiff and his gang of workmen were framing box cars under a contract with defendant of three dollars for each car framed. The answer was a general denial, a plea of contributory negligence, and a plea that if the injuries were in anywise caused by the negligence of defendant’s employees said employees were the fellow-servants of plaintiff and plaintiff assumed the risk of any negligence on their part. . — 434 — The reply denied all new matter alleged in the answer. The petition states in substance that the defendant is a corporation organized under the laws of this State and engaged in manufacturing cars in the city of St. Louis and plaintiff is and was at the time therein mentioned a carpenter and contractor, and in the month of July, 1898, he in conjunction with certain other persons contracted and agreed with defendant to frame and do the work in framing in the sheds and premises of defendant in said city, cars of a certain kind which defendant was then building, and defendant agreed and promised to pay plaintiff and his associates three dollars for every one of said cars framed by them. The works or premises of defendant in said city in which said cars were being built, constituted, in part, several large sheds between which ran a transfer track, on which was run by defendant by means of one engine, a transfer car or platform which was used to transfer cars from one of said sheds to another. The west one of said sheds on the south side of said transfer track previous to August 22, 1898, was the one in which said cars were framed by plaintiff and his associates, and in bringing the timbers used in framing said cars plaintiff and his associates did not have to bring or carry said timbers across the said transfer track. On said 22d day of August, 1898, defendant directed plaintiff and his associates to move from said west shed into the east shed on the south side of said transfer track and to frame said cars in said east shed, and thereupon plaintiff .and his associates began to. frame cars in said east shed. The timbers to be used in framing said cars were required to be brought into said east shed by carrying them across said transfer track, a fact well known to defendant, and its superintendent and foreman. And on the 23d day of August, Í898, plaintiff and his said associates were engaged in bringing into said — 435 — east shed a long and heavy timber to be used in framing said ears, and when one end of said timber was in said shed, and the other or hind end still projected over and across a rail of said transfer track, and while plaintiff 'and his associates were engaged in trying to bring the whole of said timber into said shed, the portion of said timber which projected over and across said rail of said transfer track, was suddenly and violently struck and pushed by said transfer car or platform, and a railroad car which stood on said platform, and said timber was shoved and pushed with great force against a post, causing the other or forward end of said timber, near which plaintiff was, to strike plaintiff and to force and press him with great force and violence against another timber or post, thereby crushing, mangling and injuring plaintiff,, internally and externally, and crippling, injuring ,and disabling him for life. And plaintiff says that when plaintiff and his associates began to frame cars in said east shed as aforesaid, or at any time thereafter, defendant did not notify its servants and employees engaged in running said transfer car and the engine that propelled the same, that plaintiff and his associates were working in said shed, and that they would have to bring timbers into said shed over and across the rails of said transfer, tracks, and to be on the lookout or watch so as not to injure them while they were bringing said timbers into said east shed. And it was the duty of defendant, when operating and running said transfer car over and along said transfer track, to have some competent person so placed that he could see any obstacles or obstruction that might be on or over said transfer track and give notice thereof in time to prevent a collision or injury. And at the time plaintiff was hurt and injured as aforesaid, defendant had no person so placed that he could see obstacles on or over said transfer track. And the employees and servants of defendant who were on said •transfer car and engine propelling same at said time, — 436 — by- direction of defendant, were so engaged and occupied in other work that they could not and did not see said timber extending over and across the rail of said transfer track. And plaintiff says that by the exercise of ordinary care and prudence defendant should have avoided striking the end of said timber as aforesaid and injuring plaintiff as aforesaid. And plaintiff says he was injured as aforesaid by the carelessness and negligence of defendant in causing said transfer car o.r platform, and a railroad car on same, to strike and push said end of said timber projecting over and across the rail of said transfer track as aforesaid. And plaintiff further says that he was injured as aforesaid by the carelessness and negligence of defendant in not notifying its servants and employees on and operating said transfer car or platform and engine propelling same that plaintiff and his associates were working in said east shed and would have to bring timbers into said shed over and across said transfer track, and to be on the lookout for them crossing said track with said timbers, and by the carelessness and negligence of defendant in not having some person so placed that he could see obstacles on or over said track and give notice in time to avoid collision and injury, and by the carelessness and negligence of defendant in having its servants and employees who were on said transfer car or platform and engine propelling same at time plaintiff was injured as aforesaid so occupied and engaged at other work that they could not, and did not, see the said end of said timber projecting over and across the rail of said transfer track. And plaintiff further says that at the time of and before he was hurt and injured as aforesaid, he was a strong, healthy man and a good mechanic and steadily employed, and regularly earned good wages, viz., five dollars a. day. And plaintiff says that as the direct result of the said injuries received by him as aforesaid he was very sick and confined to his house and bed for — 437 — a long time, viz., four months, and suffered great and excruciating pain both bodily and mentally, and plaintiff has paid out for medical services and for medicines and nursing, rendered necessary by said injuries, a large sum, viz., $500. And plaintiff has not yet recovered from said injuries so as to be able to do any work or labor, and he has lost his wages and earnings ever since said injuries, to-wit, August 23, 1898, viz., $700. And plaintiff as the direct result of said injuries is injured and crippled for life, and will never be able again to do hard work, or labor or work at his trade, or do' any work or labor, and that he will hereafter, as long as he lives, require medical attention and medicines and nursing in consequence of said injuries received as aforesaid, and he will as long as he lives suffer great pain, bodily and mentally, as the direct result of said injury. And plaintiff says that by reason and in consequence of the injuries received by him ■as aforesaid he has been damaged in the sum of twenty thousand dollars ($20,000) for which sum he asks judgment. The cause has been twice tried, resulting each time in a verdict for $5,000. The facts are not complicated. According to plaintiff’s evidence Mr. Dalton was the superintendent of the defendant’s ear works. Plaintiff is a carpenter and contractor, residing in St. Louis. Plaintiff and his son went to work for defendant about July 20, 1898, and did “lining up” and a few days later Mr. Dalton gave’him a track to frame cars on, known as track No. 1, in the main shed. After working there about 10 days, as plaintiff and his gang did not work on a certain Sunday, the defendant put other men to work on this track. The agreement between plaintiff and the superintendent, Mr. Dalton, was that plaintiff should receive three dollars for every car he framed. Mr. Dalton told him he could not get together a gang to help him frame. It required — 438 — four men to do this work, but that plaintiff could get the gang and he would give him a track to frame the cars on. Thereupon plaintiff looked around and got the other three men together and went to work on the track designated by Mr. Dalton. Billy Hoch and Ben Hockenbough were two of these men that worked with plaintiff. Under this arrangement they went to work some time in August, 1898, and had steady employment until the time plaintiff was hurt. The plaintiff’s gang were shown where to get the necessary timbers. In order to get them into the shed where the framing was done it was necessary to take them across the transfer track, or what is denominated “the pit of the transfer table” or car. The tracks of this pit run east and west and the sheds were on the north and south of it. On this transfer table or car there was a regular railroad track, so that a car could be pushed from either shed upon this track on the transfer table, and then the table could be moved even with any other track in the sheds and the car pushed off of the transfer car on to the tracks in such.shed. On the day of the accident to plaintiff he and his associates were carrying a heavy piece of timber across the transfer pit to the east shed on the south side and had gotten one end of it in the caboose shed and were pushing the timber on a car which they were engaged in framing, but the end toward the pit had not cleared the transfer track and when they had pushed the timber as far as they could and when it had gone a certain distance into the car, the end on which they were pushing raised up level with the floor of the car, but still projecting over the track; they then got into the car frame and shed and were pulling at it when the transfer table or car was run against it and the timber was suddenly thrown against plaintiff, forcing him against a post in the car and mashing him internally and breaking the timber before the transfer car was stopped. — 439 — As to the relationship of plaintiff to the company, whether servant or independent contractor, the following questions and answers of plaintiff indicate his understanding of his employment: “Q. What was said as to the terms of agreement under which you were to frame cars there? A. I was to get $3 for every car I framed. Q. Well, what then? A. He told me I could go and get me a gang of men to help me frame; it required four men to do the work, and then he would give me that track to frame my cars on, and I looked around and got my gang and went to work on track number one, where he demanded me to work. Q. Was there anybody over you there to see that you worked, or could you work or quit as you saw fit? A. We could quit work at our pleasure. Q. Did anybody give you any directions? A. No, sir; of course when the shed was opened — we were working piece work and it was our duty to go to work as soon as the shed was opened. We were working for so much a car and of course it was to our interest to do as many cars as we possibly could. Q. How often were you paid? A. Paid monthly. Q. Paid according to the number of cars you framed? A. Yes, sir. Q. Each man in your gang received the same amount — equal proportion for the building of the cars? A'. That is the agreement I made with the men. If they would do the work as much as I would do, we would work together and divide up the money equally. Q. And you went out and got this gang of men that worked with you, I understand? A. Yes, sir. Q. And in doing the work of that gang who had the direction and control of it? A. I had the direction of it; if there was anything wrong with the car, bolt or nut off, he would look at my number; it was the first; then he would send me to put this bolt on so that the inspector wouldn’t see that there was anything wrong with the car. Q. In working together who took control of the. four — was there anyone among you four that had control over the — 440 — other three — who had control of you four men? A. "Well, I had control of them, certainly.” There is no reference in this connection to the testimony of Mr. Iloch, who testified as follows: “Q. Had you worked ip the Missouri Car and Foundry Company there before Mr. Gayle got you to work in that gang? A. No, sir; he hired me to work there. Q. "Who engaged you? A. Mr. Gayle. Q. You had not worked there before? A. Never put a foot in there before. Q. Piad you ever spoken to Mr. Hunter before that? A. I walked in the place and asked Hunter for a job. "Well, he says, you will have to go to the framers and see about that; and I happened to run across Mr. Gayle and he asked me if I ever framed before, and I says, £No,’ and he said, £I will give you a trial and see if you are all right. ’ I continued to work for him until he was hurt.” The head foreman, Dalton, did not testify on part of defendant, but William Hunter, a subordinate foreman in the yards, testified for defendant that he was the foreman over that part of the yards and foreman of the framers. Had power to discharge any man that he was dissatisfied with in that part of the grounds. • On cross-examination, he testified that if on any day there was no timber or material for Gayle’s gang to work on, they lost that time. They got nothing except for the number of cars they framed. There was no contract that they should complete any particular number of ears a day. £ £ Q. Did you ever tell him he had to frame five or four cars or any number of cars a day? No, sir.” Never discharged Gayle or any of his men while Gayle was there before he was hurt. He hired them. He testified, however, that he told Gayle to get his gang. He further testified that the men constituting Gayle’s gang were already in the employ of the company in other capacities, but admitted that Hoch had not worked for the company prior to Gayle’s employment of him. Horst, who worked on the transfer — 441 — also said Hunter was foreman, but Horst did not work on the framing work and knew nothing’ of Gayle’s contract. Rockenburgh, another of Gayle’s witnesses, testified that Hunter generally hired the framers but “of course sometimes we made up a gang and he had nothing to say what men we shall take. We get them to suit ourselves.” Defendant also offered in evidence a printed slip in following form: “No........................ Missouri Car and Foundry Company. Piece Work. ..................day of....................19.. ' Employe’s No....................... 1 J Plaintiff testified positively he never saw such a slip during his work for the company. Aldridge, another of plaintiff’s gang, testified —- in response to question by defendant’s counsel, “Mr. Hunter was foreman of that gang?” “No, sir. I paid no attention to anybody but Mr. Gayle in that gang; he was the man that hired me.” Q. “Mr. Gayle asked you to -come and work in the gang did he?” A. “Yes, sir.” Q. “"Who was Mr. Gayle’s foreman?” A. “I don’t know that he had any foreman; if he did I didn’t know it.” On the part of defendant a deposition of plaintiff was read in evidence, over which the following colloquy occurred: Q. “What man directed your work?” A. ‘‘There were different men. Mr. Dooley and any of them.” Q. “Mr. Dooley was superintendent?” A. “Yes, sir. He is as liable to tell you as anybody else but Hunter was foreman there. I suppose Hunter was •the foreman under whom we worked. Hunter was the foreman under whom we most generally worked.” As to the cause of his injury plaintiff’s evidence tended to prove that when he and his gang were cross — 442 — ing the transfer pit with the piece of timber to use in the car they were framing, the transfer car was standing about 80 feet west of them at a stand still; that the pit was about'300 feet long. Horst testified that he was employed by defendant to work on the transfer platform in loading and unloading cars and moving them from one track to another as required for their completion. The transfer was operated by an engine in charge of Stephens, engineer, and by Horst and Whitneber. Whitneber was dead at the time of the trial, and Stephens, the engineer, was not called as a witness. He was still in defendant’s employment at that time. Horst testified it was the duty of Whitneber and himself to adjust the cables on the platform car around the spools, and to watch out for obstructions on the track. On this occasion he. didn’t see any danger ahead and didn’t pay any attention any more. Was engaged in fixing his rope and had not finished when the alarm was given. There was a box ear in front of him on the transfer platform, and when the alarm was given he went around the end of it and saw they had struck the piece of timber and broke it. He could have seen plaintiff’s gang if he had been looking at the time. He could see the whole length of the pit. Says he didn’t know they were framing the caboose track, but there was nearly always work going on in that track. He testified that if the rope fouled it took a good deal of time to get it right. If not fouled, it took only a few seconds to put it round the iron spool. Sometimes it gets fouled every time you use it. It was his duty to watch out when not attending to his ropes. Without recapitulating all the evidence it will suffice to say that the evidence abundantly tended to show that but for the failure of Horst and Whitneber to keep a proper lookout and signal the engineer, the transfer platform would not have been run against the projecting timber which plaintiff and his associates — 443 — ■were handling at the time and the plaintiff would not have been hurt. Indeed we understand the contention of counsel for defendant to be that it was the duty of these two men who worked on the transfer in loading and unloading cars to keep watch, and that they were negligent in not doing so, and plaintiff’s injuries resulted from their negligence, but that they were fellow-servants of plaintiff and consequently he can not recover. As to plaintiff’s injuries, the evidence shows he was crushed between the pieces of heavy timber and car post and was only relieved by the breaking of the timber. He was mashed until he was insensible. He was taken to a hospital where he stayed for a week and then went home. About sixty days after he was hurt an abscess formed in him and every month since then it has returned. Since the first abscess he has never had a passage of his bowels without the use of a syringe. Has never been able to do any work of consequence since. Some days he would do a little light hauling, and then would be compelled to remain in bed all day. Before his injury he was a strong healthy man and had never been sick. He had earned $135 a month in the McDonald Iron "Works just prior to going to work for defendant. He and his gang built from five'to six cars a day and the proceeds were divided equally between them. Drs. Curtis and Ward treated him for his injuries. He has. practically been in the care of the physicians ever since he was hurt. Dr. Edgar T. Ward testified as follows: “Edgar T. Ward, being duly sworn, testified as follows on behalf of plaintiff: Is a physician by profession and has been one six or seven years. Is acquainted with plaintiff, having met him in August, 1898. On the 23d day of August, 1898, a friend of witness, Dr. Curtis, was taken sick and telephoned witness to come down to his office; witness went down, and the next day or second day afterwards Mr. Gayle came to — 444 — the office and witness and Dr. Curtis examined him together. After that witness saw plaintiff a great many times at his residence, and also at Dr. Curtis’s office. When witness first examined plaintiff he showed symptoms of internal injuries and symptoms of suffer-' ing great pain. He could not stand any pressure on his abdomen for the purpose of making an examination, and merely a palliative treatment was used until ■plaintiff could stand the pressure necessary to make .a diagnosis. Subsequently witness found that plaintiff’s abdomen was beginning to swell. Later on a tumor developed on the left side pretty well back. About seven weeks after witness first saw plaintiff, there developed an abscess which revealed itself by the discharge into the large gut, the passage of pus and blood and shreds of tissue from the bowels. Witness treated plaintiff during the fall of 1898 and up into 1899, and has seen him at intervals ever since. During the fall of 1898, plaintiff was confined to his bed most of the time, .and suffered from a partial paralysis of the bowels and could not get an operation without enemas, that is, the introduction of a tube into the rectum. As to his condition now, witness regards plaintiff as suffering with a chronic pus cavity breaking into the large gut and contraction of the gut and suffering with a partial paralysis of the large bowel, a condition in which he is unable to evacuate his stools without the assistance of artificial means. In the opinion of witness, plaintiff will not get well. The fact of having a poisonous condition of the internal organs has reduced his strength. It has a bad effect upon his nervous and muscular systems and also upon his digestive system. Witness does not think plaintiff is physically 'able to labor. The recurrent abscesses plaintiff lias are painful. The reasonable value of witness’s services is something over $300. Plaintiff has reached the stage now where he can use a syringe himself for the purpose of having action.” — 445 — 'William J. White, being duly sworn as a witness on the part of plaintiff, testified as follows: Lives in St. Louis and his occupation is that of a carpenter; has lived in St. Louis thirty-two years; has known plaintiff since the 28th day of August, 1898; saw him at his house on that day; he was in bed when witness got there; witness was sent by the local council of the Carpenters and Joiners of America as a delegate from the sick committee; witness saw plaintiff regularly every week for ten weeks; during that time plaintiff was not able to work; after the said ten weeks witness saw plaintiff about once a month; he seemed to be in about the same condition; in August, 1899, witness began calling there every week, and found plaintiff in about the same condition as aforesaid; on all of these occasions the man looked big and stout, but he was weak; on one occasion witness walked a short distance with plaintiff, and plaintiff was panting like a winded horse. I. Upon the foregoing state of facts, the defendant insists the circuit court should have sustained the demurrer to the evidence offered at the close of plaintiff’s case, and again offered at the close of all the evidence. This contention is based, first, on the proposition that plaintiff’s action is based on the theory that plaintiff was an independent contractor, whereas the evidence shows he was simply a servant of the defendant, and having failed to show he was an independent contractor he can not recover on the theory that he was a servant only. Second, that there were only three allega,tions of negligence in plaintiff’s petition, and there was no evidence to support either, hence there was nothing to submit to. the jury. In a word, the defendant insists that the evidence shows as a matter of law that plaintiff was not an independent contractor. — 446 — The legal test for the determination of this question is stated by Judge Thompson, in his work on Negligence, vol. 2, p. 899, sec. 22, as follows: “The general rule is, that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work, not in itself unlawful or attended with danger to others, according to the contractor’s own methods, and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, his sub-contractor, or his servants, committed in the prosecution of such work. An independent contractor is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. ’ ’ This statement of the law was specifically approved in Fink v. Mo. Furnace Co., 82 Mo. 276, in which ease it was held that the foregoing statement of the law had been recognized and affirmed in Hilsdorf v. St. Louis, 45 Mo. 98; Morgan v. Bowman, 22 Mo. 538; Clark’s Admrx. v. Railroad, 36 Mo. 218; Barry v. St. Louis, 17 Mo. 121. Those cases were reaffirmed in Long v. Moon, 107 Mo. 334, and again in Crenshaw v. Ullman, 113 Mo. loc. cit. 639. In Fink v. Furnace Co., 82 Mo. 276, Stevenson, a negro teamster, hired Jones, another negro, to help him dig and haul sand to the furnace company at 55 cents a load. There was no stipulation as to how he should dig the sand, but the company gave him permission to get the sand from their lot, where in digging Stevenson and Jones left a hole in the bank and plaintiff’s child went under the bank, and the superincumbent soil fell on it and killed it. It was held that Stevenson was an independent contractor, and the company not liable for his negligence. So where the owner employed another to construct an elevator in his building and by the negligence of the — 447 — contractor a stick of timber fell and struck a lady in an adjoining yard, it was held the owner was not liable. [Long v. Moon, supra.] The rule announced by Judge Thompson and approved so often by this court is approved by Shearman and Redfield on Negligence, secs. 164-165; Powell v. Construction Co., 88 Tenn. 692. But it is not easy always to say that the facts of a given case bring it within the definition of an independent contractor. Shearman and Redfield on Negligence declare such contractor to be one who undertakes to do specific piece work for other persons without submitting himself to their control in the details of the work save as to the result of the work. [S. & R. on Neg., sec. 164, and cases cited.] The same authors in section 165 declare that one who contracts to do a specific piece of work, furnishing his own assistants and executing the work either entirely according to his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor and not a servant; and “an express contract to pay by the job is always strong evidence that the relation of master and servant does not exist.” Nor does the mere right to inspect and require the work to meet the ápproval of the employer make the contractor a servant. When the facts are undisputed no doubt exists that the court may declare as a matter of law whether one is an independent contractor or merely a servant, as in Long v. Moon, 107 Mo. 334, but where the facts are disputed the proper course it seems to us must be to leave it to the jury under proper instructions to say whether one was an independent contractor or a servant, accordingly as the facts are found. Great stress is laid by defendant on the fact that plaintiff testified that Plunter was the foreman in that — 448 — part of the yard, but it was said in Larson v. Railroad, 110 Mo. loc. cit. 241, that “it is now the accepted rule that supervision of work may he retained without interfering with the independent action or liability of contractors who have engaged to perform it or subdivisions of it.” So that giving plaintiff’s statement in his deposition its full force it imports no more than that defendant reserved the general supervision of its yards and the right to inspect the various pieces of work to see that they conformed to the contract or p]ans under which they were being constructed. In defendant’s first instruction, which the court refused as offered, the essentials which defendant insists made plaintiff a servant and not a contractor are, that plaintiff agreed to work under the general supervision of defendant’s foreman as a carpenter with other carpenters who should compose his gang from time to 'time; that a stipulated sum should he paid for each car framed and that sum divided equally between the four carpenters who framed it and be paid monthly, and if defendant could discharge plaintiff or amy of his gang if it saw fit to do so, then plaintiff was .an independent contractor. It is obvious in view of the principles already announced that no one, nor all, of these hypotheses, save and except the right to discharge plaintiff, establish that plaintiff was merely a servant and not an independent contractor. As to the right to discharge plaintiff or any of his gang there was a plain contradiction, Hunter affirming such a right, plaintiff and Hoch, and Aldridge and Hockenbaugh denying that any such right was reserved to Hunter or the defendant. The contract was made with Dalton, the general foreman, and he did not testify that any such right was reserved to defendant. As stated in the instruction this right was absolute. As said in Blum v. Kansas City, 84 Mo. 116, “certainly the mere reservation of the power to suspend the — 449 — work, or annul the contract, did not make the city liable for negligence in tbe construction of the work.” That tbe defendant might have closed its works without being liable to plaintiff may be conceded, but outside of Hunter’s evidence there was no testimony that plaintiff agreed that Hunter or defendant might discharge him or any of his gang. Under, these circumstances and in view of this conflict of evidence as to the nature of the employment, the court properly submitted the case on plaintiff’s theory as well as defendant’s, and had no right to assume either had correctly stated the contract and base a peremptory instruction on either theory. Moreover, defendant did not try the case on such a theory, but by submitting and obtaining its instruction as modified by the court, it conceded this was a proper question for the jury to determine under its instructions whether plaintiff was an independent contractor or not. [Berkson v. Cable Co., 144 Mo. 220.] The second ground urged why the court should have given an instruction in the nature of a demurrer to the evidence is that there was no allegation of negligence outside of three specifications, in the petition, and as those three were shown to be.groundless, it was error to submit the case to the jury. This ignores the averment that “plaintiff was injured as aforesaid by the carelessness and negligence of defendant in causing said transfer car or platform and a railroad car thereon to strike and push said end of said timber projecting over and across the rail of said transfer track as aforesaid.” In suing a defendant for the negligence of its servant it is entirely permissible to allege that the defendant did the acts alleged to be negligent and averring generally that it was negligently and carelessly done. [Mack v. Railroad, 77 Mo. 232; Schneider v. Railroad, 75 Mo. 295.] Particulaifly is this true when, as in this case, no — 450 — objection to its sufficiency was taken before the trial or on tbe admission of the evidence. If the plaintiff was an independent contractor, he was not a servant, and consequently not a fellow-servant, of the men operating the transfer car, and if he was hurt by the negligence of the men on the transfer car in heedlessly running said transfer platform against the timber he was handling, or by the negligence of the defendant or its superintendent in having the men on the car so placed behind the box car that they could not see the projecting timber and furnishing no other watchman to look out for those whose work required them to cross the track with timbers, he was entitled to recover. This petition is not . like the petition in the Mc-Manamee case, 135 Mo. 447, in which we held that when a general allegation of negligence is followed by an enumeration of specific acts of negligence the plaintiff will be confined to the negligence specifically charged, for in this case there is a fourth specification, under which the negligent striking of the timber by the car is alleged. This assignment must be ruled against defendant. II. The second instruction is challenged because it is insisted there was ho evidence upon which to base it. Counsel insist that the evidence discloses that there were two men on the transfer platform and that when one of them was occupied in adjusting the ropes or cables the other was not, and hence there was no negligence in not keeping a watch for those who would necessarily be crossing the pit with timbers in front of the moving platform or transfer car. The evidence on this point shows that this transfer car was used to move cars from one shed to another in the course of their construction, and it was provided with a railroad track running entirely across its front, on which the cars were taken from one shed and un — 451 — loaded at another. These ears were pulled on or off of the movable transfer platform by a cable which was wrapped around a large cylinder or drum which stood in the center of the transfer platform, and said cable was also wrapped around two smaller cylinders or spools, one at each end of the car. When a car was standing on this platform it was in front of this drum and these spools, and shut off the view of any person standing at the drum or at either of the spools. There were two men at work on the transfer ear (at the time of the accident, they were Horst and Whitneber) whose duty it was to attend to taking the cars on and off of the transfer platform, and when they had a car on this transfer, as they had at this time, it was their duty while the transfer was in motion to adjust the cable around the drum and spools so as to be ready to immediately pull the car off of the transfer when it reached the other shed for which it was destined. The evidence very clearly shows that the adjusting of the cable took but a short time unless the cable had become fouled, and this occurred quite frequently. Horst testified that when the car struck plaintiff’s timber he was engaged adjusting the cable. “I don’t believe I was through with my rope, then. I catched foul with the rope and somebody hollored.” He was not watching at the time but was busy putting his rope around the cylinder and spools and hadn’t got through when the transfer struck the timber. It was practically conceded he could not see from the point at which he was working because the box ear was in front of him, and he was busy at his rope but the insistence is that Whitneber saw or could have seen plaintiff and his associates on the track. Whitneber was dead at the time of the trial. Horst in one portion of his testimony says Whitneber had put his rope around his spool before he, Horst, finished adjusting his, but in another part of his evidence he testified he did not know what Whitneber was — 452 — doing at the time of the accident. He didn’t know what he did that day; that 'Whitneber worked at the north end and witness at the south end of the transfer car; that the rope around the drum was fouled. That when anything is wrong with the drum, it interferes with feeding the spools. Plaintiff was working south of the transfer, the side on which Horst was working and on which naturally he would watch when not engaged at the spools and Whitneber was at the north end. The pit was fifty feet wide. A freight car stood on the transfer. Whether Whitneber standing on the north end of the transfer car and at the north end of a freight car standing thereon could see the timber on the south side across the track was a question of fact for the jury. While Horst says that at a distance of 250 or 300 feet away, Whitneber could see the timber, plaintiff’s witnesses testify that the transfer was 90 or 100 feet away and standing still when they crossed the track with the timber. The transfer was moving, and what - point it had reached, when Whitneber finished adjusting his rope, is left in doubt, and with the car-obstructing his view to the south, the jury might well have found that he could not see the timber in time to give the alarm. The court left it to the jury in the second instruction to determine “from the evidence whether in the position in which Horst and Whitneber had to stand while disentangling said ropes and adjusting them on said drum and spools, they could see in front of said transfer ear when there was a box car standing across the front of the transfer car and that if they were busy at their cables and required to be by defendant, then it was not the negligence of these men which occasioned the injury to plaintiff, but defendant’s own negligence in not furnishing watchmen for said transfer.” We do not agree with defendant’s counsel that there was no evidence from which the jury might have found that neither Horst nor Whitneber could have seen the pro453 j eeting timber, situated and engaged as they were at the time. ni. Instruction numbered 4 for plaintiff was assailed on the ground that it assumes facts not proven or which the jury alone could find. We think this contention is without merit because the whole question of damages is predicated upon the proposition “that if the jury find for the plaintiff they will assess his damages,” etc. To find for the plaintiff at all they were required to find that he had been struck by the moving car, and injured, and if so, then they would “assess his damages in such sum as the jury believe from the evidence will compensate for all pain, suffering to body and mind ccmsed plaintiff as the direct result of the injury sustained by plaintiff,” etc. This was not an assumption of anything. They must first find his injury and then compensate him for it. Neither was there any assumption as to medical attendance. But an answer to all this is that there was in fact no dispute as to his injuries or his medical attendance. The witnesses testified fully as to his injury, his pain and the character of the medical attention. It is not error to assume a fact over which there is no controversy. [Taylor v. Iron Co., 133 Mo. 366; Pope v. Cable Co., 99 Mo. 406.] IY. In various other instructions the defendant prayed the court to instruct the jury that if plaintiff was injured by the negligence of Horst and Whitneber or either of them, the plaintiff could not recoyer because they were his fellow-servants. The court modified these instructions, by adding thereto the proviso that they found they were fellow servants. Of this modification the defendant has no cause for complaint. As already said there was evidence which justified the jury under the instructions of the court in finding plaintiff was an independent contractor and this being so it was obviously improper for — 454 — the court to tell the jury by a peremptory instruction they must find for defendant because plaintiff was. injured by the negligence' of a fellow-servant. As to the alleged error in refusing the sixth instruction, it suffices to say that the court modified it by merely adding to it the words “and thereby caused or directly or indirectly contributed to plaintiff’s injury,” so that as given it read: “The court instructs the jury that if you believe from the evidence that plaintiff and his gang were negligent in leaving the timber sticking out of the shed and over the tracks of the transfer table, and thereby caused, or directly contributed to plaintiff’s injury, then the plaintiff can not recover.” As modified it was clearly a proper instruction on contributory negligence. Moreover the court gave instruction numbered 7 asked by defendant in these words: “7. The court instructs the jury that if you believe from the evidence that the plaintiff himself was guilty of negligence which directly contributed to cause his injury, the plaintiff can not recover.” Plaintiff’s contributory negligence, if any, was fairly and fully submitted to the jury. Y. Again error is alleged in permitting the witness Otto Muechsler to answer a question in these words: “I will ask you to state whether or not you saw what those men were doing while on the transfer table?” Counsel for defendant: “We object to that as irrelevant and incompetent.” Obviously this was no objection at all. The witness then answered: “I saw them taking and shoving their cables over the spools getting ready to pull a car off the transfer into the shed down the line where it was supposed to go while the transfer table was in motion. ’ ’ But outside of the insufficiency of the exception, it is plain the evidence — 455 — was pertinent and competent to show the course of business and the" duties exacted of the men on the transfer. The witness had worked in these sheds from September, 1897, to February, 1898, and had seen Horst and Whitneber operating the transfer and this injury occurred about four months later. There was no suggestion or proof that a different method had been adopted since he saw them. It was not so remote, even if that objection had been made, as to render it wholly inadmissible. But it was merely cumulative. Horst and Hunter both testified to the same thing and it doubtless had but little effect on the jury. But the objection was too indefinite to avail in this court. [State v. Wright, 134 Mo. 418; Lumber Co. v. Rogers, 145 Mo. 445.] This cause has been twice tried and resulted each time in a verdict for plaintiff. The issues were submitted on fair instructions on both sides. The defendant by its own instructions submitted the questions which it now says ought not to have been left to the jury. A party can not thus play fast and loose. It is bound by the line of conduct it adopted on the trial. We find no reversible error and the judgment is affirmed. All concur.