Shaw v. Bambrick-Bates Construction Co.

REYBURN, J. (after stating the facts as above).— The assignment of negligence relied on in the petition is the carelessness, negligence and wantonness of defendant’s servants in charge of its quarry, without warning to plaintiff, who was engaged in loading the box with stone at the bottom of the quarry, in starting the engine and causing the box to be suddenly raised and shifted, striking and injuring him; the complaint is barren of any charge of incompetency or unfitness on the part of any of his fellow-servants, or of any assertion that the machinery and appliances were unfit or [670] perilous, or the place that where he worked was hazardous, or not reasonably safe. Defendant insists that plaintiff and the workman at the top of the quarry bank, Luke Eurick by name, who did not appear at the trial, and who, if any one, was guilty of the carelessness producing the accident, were mere fellow-servants, and the common employer (appellant), in consequence was not liable. In Moore v. Railway, 85 Mo. 594, the court says: “If we may venture a general proposition on the subject it is, that all are fellow-servants who are engaged in the prosecution of the same common work, leaving no dependence upon or relation to each other, except as co-laborers without rank, under the direction and management of the master himself, or of some servant placed by the master over them. If a person employs another to perform a. duty, which he would have to discharge, if another were not employed to do it for him, such employee, as to that service, stands in the master’s stead, with relation to other persons, ’ ’ and the Supreme Court has further said that a foreman may occupy a dual position, that is, he may be at the same time a fellow-servant and representative of the master, and when the master delegates to a servant power to superintend, control and direct the men engaged in the performance of work, such person is, as to the men under him, a vice-principal whether he be called superintendent, conductor, boss or foreman and for his negligent acts in performing the duties of his master, the latter is liable. Miller v. Railway, 109 Mo. l. c. 356. But under the facts herein made patent, plaintiff and the workman at the top of the bank were, at the time of the injury, directly co-operating with each other in performing the work of their common master, engaged under the same foreman and in the same general business. So far as the record discloses, the servant signaling the engineer was delegated by the master with no power to superintend, control or direct the other [671] workmen engaged in the common employment, and it can not be said that this workman, whose sole duties appear to have been to observe when the box was filled by his fellow-workmen at the bottom of the quarry, and give notice to the engineer to begin its elevation to the top for transporation to the crusher, where the same workman turned in its contents, took the place of the master or in any way was his representative. The proof establishes that the master was represented at the quarry other than by Luke Enrich, the man who signaled the engineer, such representative being termed by plaintiff the general foreman. Under the facts here exhibited, the injured quarryman and Eurich were prima facie-mere fellow-servants. Where the essential facts for determining who are fellow-servants are not in con-' troversy, the question then resolves itself into simply one of law, but it devolves upon him relying upon the absence of such relationship to establish by proof its non-existence. McGowan v. Railroad, 61 Mo. 528; Blessing v. Railway, 77 Mo. 410; Sheehan v. Prosser, 55 Mo. App. 569. The doctrine of the case of Steube v. Iron Co., 85 Mo. App. 640, relied on by respondent, that where from the nature of the work in which the workmen were engaged and from its hazardous character, it is the duty of the master to superintend it, which he can not escape by delegating the oversight to an employee, in other respects a fellow-servant, fails to fit the facts constituting plaintiff’s case. Nor are the many cases applicable cited by respondent, where the employer had violated the obligation to furnish the employee at all times a reasonably safe place in which to do the work required of him, as in Zellars v. Light Company, 92 Mo. App. 107; Weldon v. Railway, 93 Mo. App. 668, and other eases cited, for no such allegation was contained in the petition nor established by the proof. Under the facts in evidence herein, plaintiff and the signaling workmen were fellow-servants at the time of [672] the casualty, engaged in a common employment under the same master, and so associated and situated towards each other that they could report to their common master for redress of any delinquent conduct on the part of each other, and could each exercise preventive care over the conduct of the other, the latter constituting general and established tests of the attitude of servants of the same employer. Parker v. Railway, 109 Mo. l. c. 409. The appellant was not liable to respondent for any injury resulting from the negligence of his fellow-servant in the same common service. Parker v. Railway, 109 Mo. 362; Ryan v. McCully, 123 Mo. 636, and the judgment is reversed and the cause remanded. Blrnd, P. J., and Goode, J., concur.