Morton v. William Barr Dry Goods Co.

BLAND, P. J. (after stating the facts) — 1. That Eugene Morton lost his life through the culpable negligence of someone is beyond cavil or question; it is also equally clear, on the evidence furnished by respondent, that he was guilty of no negligence that directly contributed to his injury. Appellant’s contention is that Morton’s death cannot be attributed to its negligence, for the reason, being neither a manufacturer nor mechanical engineer, it did its full duty to furnish Morton a reasonably safe place to work, by contracting with experienced and reputable people in the business, to furnish and install its machinery and appliances under the supervision of competent mechanical engineers employed by it, and by having installed blow-off tanks of approved patterns and in common use, equipped — 385 — with such vents and outlets as are ordinarily used in like circumstances. Whatever may be the rule in other jurisdictions, the law is well settled in this state that the- master cannot delegate his duty to use reasonable care to furnish his servants with a reasonably safe place to work to an independent contractor. This duty is a personal one, which he cannot shift to the shoulders of some one else by contract, or otherwise. [Herdler v. Buck’s Stove & Range Co., 136 Mo. l. c. 16, 37 S. W. 115; Curtis v. McNair, 173 Mo. l. c. 280, 73 S. W. 167; Burnes v. Railway, 129 Mo. l. c. 56, 31 S. W. 347.] Labatt says: “It is a contradiction in terms to speak of an absolute duty as being susceptible of delegation;” and that the cases absolving the master from responsibility for the negligence of an independent contractor in this connection have been decided upon a false theory of the circumstances involved. [2 Labatt, Master and Servant, sec. 559.] Judge Thompson says-: “The duty of the master to exercise reasonable care to the end that the place in which his servant is required to work is reasonably safe is a primary duty of the master in the sense that it cannot be delegated, or that, if delegated, the person to whom it is delegated is the alter ego or vice-principal of the master, and that his negligence in the discharge of this duty is the master’s negligence.” [4 Thompson, Negligence, sec. 3763.] In Northern Pacific R. R. Co. v. Herbert, 116 U. S. l. c. 647-8, it is said: “It is the duty of the employer to select and retain servants who are fitted and competent for the service and to furnish sufficient and safe materials, machinery, or other means, by which it is to be performed, and to keep them in repair and order.This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no- duty required of him for the safety and protection of his servants can — 386 — be transferred, so as to exonerate him from such liability.” In Bartley v. Trorlicht, 49 Mo. App. l. c. 231, Judge Thompson said: “The absolute duty of exercising reasonable care, to tbe end- that the machinery and appliances placed in the hands of his servants will not endanger their lives or members, rests upon him equally, whether he attempts to exercise that duty through an independent contractor, through another servant, or by himself in his proper person.” In Sackewitz v. American Biscuit Co., 78 Mo. App. l. c. 154, it is said: “While for many purposes the relation of independent contractor will be recognized, it cannot be sustained to shield the master from those positive personal obligations cast upon him by his relation to his servant.” To apply the relation of independent contractor or that of a manufacturer to a contractor for structures or appliances, for the purpose of absolving the master from his duty to exercise reasonable care to provide his servant a reasonably safe place to work and with reasonably safe tools to work with, would be to leave the servant remediless if injured by reason of some dangerous property of tool or appliance, or some danger or defect in the place furnished, him to work, since he would have no remedy against the independent contractor or the manufacturer who supplied the defective tool or appliance, or erected the defective structure. See note to Cleveland, C. C. & St. L. R. Co. v. Berry, 46 L. R. A. 38-45; The Joseph B. Thomas, Ib. 117-19. And it is -a just rule which holds appellant liable for the death of Morton, if appellant was negligent in furnishing him an unsafe place to work, although it purchased the blow-off tanks from a reputable manufacturer and employed competent steam fitters to connect them with the boilers and to provide proper vents and outlets, — 387 — and although it employed competent engineers to supervise the installation. Appellant’s, duty, a duty which it could not shift to the shoulders of another, was to inspect the tanks and see that they were properly installed. The tanks and their lids were of cast iron, and the evidence shows (which is common knowledge) that in making castings of iron, blow or sand holes are liable to occur. The lid of the tank which blew up was honeycombed with these holes, and though it was designed to withstand a considerable pressure of water and steam, it was never tested. Its sufficiency for the purpose for which it was intended was demonstrated by the explosion and the sad results following. The evidence shows conclusively that the lid was not subjected to any kind of test. In view of the use to which it was to be applied, an ordinarily prudent person would have tested its soundness before bolting it down to the top of the tank. Its unsoundness, no doubt, would have been revealed by tapping it lightly with a hammer, yet even this simple test was not made. This was negligence, or at least evidence from which the jury were warranted to find negligence; and a character of negligence which, in the very nature of the relation of master and servant, should be attributed to appellant. [1 Labatt, Master and Servant, sec. 57; Curtis v. McNair, supra.] Appellant’s demurrer to the evidence was properly overruled. 2. It is contended that the court erred in refusing the following instruction asked by appellant: “In reference to the charge that the blow-off tank mentioned in the evidence was made of improper material, the court instructs the jury that if you believe from the evidence that tanks of the same material were in general use at the time in question, and that this was a standard tank, then and in that case there was no negligence on the part of defendant in using that kind of tank.” In support of this contention appellant cites Min — 388 — nier v. Railway, 167 Mo. 99, 66 S. W. 1072; Chrismer v. Bell Telephone Co., 194 Mo. 189, 92 S. W. 378. In each of these cases the Supreme Court approved' the doctrine of the case of Titus v. Railroad, 136 Pa. St. 618, in which it is said: “All the cases agree that the master is not bound to. use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the matter; for in regard to the style of implement or nature of the mode of performance of any work, ‘reasonably safe’ means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they can not be allowed to set up*a standard which shall, in effect, dictate the customs or control the business of the community.” The doctrine of these cases, is inapplicable to the facts of the case in hand. Appellant is not in the situation of a master who buys of a reputable manufacturer, and appliance or implement in common use and in apparent perfect order but which really has a hidden defect not discoverable by ordinary tests, by reason of which hidden defect the servant is injured after the implement — 389 — has been put into his hands to work with by the master. But occupies the position of a master, who, to install machinery and appliances upon his premises to be after-wards operated by his servants, does not rely upon manufacturers and contractors to furnish him suitable machinery and safe appliances, but employs skilled and competent mechanical engineers to select, inspect and test the machinery and appliances to be furnished by the manufacturers and contractors and to supervise their installation. The mechanical engineers employed by appellant were its agents, its alter ego, and their negligence was the negligence of appellant and it is liable for the consequences flowing therefrom. [Miller v. Railway, 109 Mo. 350, 19 S. W. 58.] That the engineers were negligent in failing to test the head of the blow-off tank which blew up and caused Morton’s death, does, not admit of doubt. It was appellant’s duty to do what it undertook to do by its agents, ie., to supervise the installation of its machinery and appliances for the purpose of furnishing its servants to be thereafter employed a safe place to work. The duty was a personal one which it could not delegate to a contractor or employe (Sackewitz v. Am. Biscuit Mfg. Co., 78 Mo. App. 144; Huth v. Dohle, 76 Mo. App. 671; Zellars v. Missouri Water & Light Co., 92 Mo. App. 107) so as to avoid responsibility for an injury to its servants, caused by a defect in one of its appliances which could have been detected by a simple and ordinary test. As is said in the case of Balt. & Ohio Railroad v. Baugh, 149 U. S. l. c. 386, “It is the master who is to provide the place and the tools and the machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools and the machinery, than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, — 390 — which is a matter of necessity and cannot be obviated. But within such limits the master who provides the place, the tools and the machinery owes a positive duty to his employee in respect thereto. That positive duty does not go to the extent of a guaranty of safety, but it does require that reasonable precautions be taken to secure safety, and it matters not to the employe by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employe, or the latter’s right to insist that reasonable precaution shall be taken to secure safety in these respects.” This is approvingly cited in the case of Union Pacific Railway Co. v. Daniels, 152 U. S. l. c. 689. See also Elmer v. Locke, 135 Mass. 575; Meyers v. Hudson Iron Co., 150 Mass. 125; Hall v. Railway, 74 Mo. 298; Coontz v. Railway, 112 Mo. 652; Bridges v. Railway, 6 Mo. App. 389; 1 Shearman & Redfield on Negligence, sec. 194, and cases cited in footnote 16. We conclude that the court did not err in refusing appellant’s instruction and affirm the judgment. All concur.