Gale v. Helmbacher Forge & Rolling Mill Co.

CAULFIELD, J. (after stating the facts). — I. In support of its contention that the demurrer to the evidence should have been sustained, defendant first' asserts that Erschen was a fellow-servant of the plaintiff at the time of the latters injury. Whether he was a fellow-servant or a vice-principal was a question for the jury. [Radtke v. Basket & Box Co., 229 Mo. 1, 24, 129 S. W. 508.] The proof discloses that the master mechanic ordered plaintiff to work under Erschen and that on all repair jobs within his jurisdiction Erschen had exercised superintendence and control over the men working with him. In the absence of countervailing evidence we deem this proof sufficient to justify the inference that Erschen was vested by defendant with the power of superintending control over plaintiff, and that was sufficient to constitute him a vice-principal of the defendant. [Shearman & Redfield on Negligence (5 Ed.), sec. 230; Miller v. Mo. Pac. Ry. Co., 109 Mo. 350, 357, 19 S. W. 58; Smith v. Am. Car & Fdry. Co., 122 Mo. App. 610, 616, 99 S. W. 790; Schmeizer v. Furniture Co., 134 Mo. App. 493, 498, 114 S. W. 1043.] II. But, further asserts the defendant, if Erschen was a vice-principal and not a fellow-servant, still, under the dual capacity rule the defendant was not liable for Erschen’s negligence in this case. The ‘ ‘ dual capacity” rule prevails in this state. [Fogarty v. Transfer Co., 180 Mo. 490, 79 S. W. 664; Radtke v. Basket & Box Co., 229 Mo. 1, 23, 129 S. W. 508.] — 650 — Under it Erschen represented the defendant and the defendant is liable for his negligence only in the discharge of duties which the defendant itself should ha,ve discharged, or which rested upon it as absolute duties. [McKinney on Fellow-Servants, p. 109.] But for negligence in the discharge of those duties, the defendant is liable. “The master, by appointing a foreman or other person to superintend work, with power to direct the men under him, when and how to do it, thereby devolves upon such person the performance of those duties personal to the master.” [Miller v. The Mo. Pac. Ry. Co., 109 Mo. 350, 357, 19 S. W. 58.] “When the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred upon him (Erschen) by the master over his co-laborers, the master will be liable.” [Railroad v. May, 108 Ill. l. c. 298, quoted with approval in Fogarty v. Transfer Co., supra.] Thus understood, we do not see how the application of the dual capacity rule can relieve defendant from liability in this case. The negligence charged here is in the furnishing by Erschen, the vice-principal, of an improper appliance, and in directing that the work be done with it, and the evidence sustains the charge. It was the duty of the defendant to exercise reasonable care to furnish appliances for its servants in the performance of their duties which are reasonably safe, suitable and fit for the designed use. [Gutridge v. The Mo. Pac. Ry. Co., 105 Mo. 520, 525, 16 S. W. 943; Nicholds v. Plate Glass Co., 126 Mo. 55, 64, 28 S. W. 991; Craig v. Chicago & Alton Ry. Co., 54 Mo. App. 523, 526.] This duty was an absolute and personal one. [Dutzi v. Greisel, 23 Mo. App. 676, 683; Herdler v. Buck Stove & Range Co., 136 Mo. 3, 15, 37 S. W. 115; Rodney v. The St. Louis Southwestern Ry. Co., 127 Mo. 676, 689, 28 S. W. 887, 30 S. W. 150.] It was then one which was vested in Erschen as vice-principal and for the negligent exer — 651 — cise of which, by him, the defendant was liable. [Miller v. Mo. Pac. Ry. Co., 109 Mo. 350, 357, 19 S. W. 58.] But the defendant urges that it had provided a four-chain apparatus and it was safe and suitable and in the custody of Erschen; that in rendering the sufficient apparatus available to Erschen the defendant performed its entire duty, and that his selection of an unsafe apparatus when there was a safe one available was the act of a mere fellow-servant for which defendant was not liable. We are not satisfied that on this occasion the four-chain apparatus was available. The only evidence in that respect is that always before it had been used and that Erschen had charge of it; but on this occasion Erschen the sole custodian of it failed to produce it when required and said he did not know where it was. But plaintiff makes no point that the evidence was deficient in that respect and we will assume that in the proper storage room of defendant’s foundry there were two appliances, one safe and the other unsafe, both equally available to Erschen, and that he selected and produced the unsafe one. Did he in thus selecting the unsafe one and acting concerning it as the evidence discloses that he did, act as a fellow-servant or vice-principal? In support of its contention that he acted as a mere fellow-servant the defendant cites Forbes v. Dunnavant, 198 Mo. 193, 95 S. W. 934, where the court reached the conclusion that where the master buys a mass of raw material, some bad and some good, a result incident to all buying by the quantity in the market, and entrusted the selection out of this mass to carpenters employed to build the scaffold therewith, if one of said carpenters selected a bad board, it was the act of a fellow-servant for which the master would not be responsible. That is to say, that the master might trust the servant to perform the ordinary and simple duties incident to the servant’s employment and resting upon the servant’s — 652 — knowledge and skill. Defendant argues that if the selection of the plank or other appliance can be left to a fellow-servant without the master being liable for his negligence in making it, therefore, on the theory that the question of liability is to be determined by the act and not the rank, if a vice-principal makes the selection, he is performing the act of a mere fellow-servant for .which the master is not responsible. But our Supreme Court on two occasions has distinguished the Forbes case from one where the foreman makes the selection, and held that when the foreman makes the selection it is the act of the master for which the latter is responsible. [Combs v. Construction Co., 205 Mo. 367, 104 S. W. 77; Kennedy v. Gas Light Co., 215 Mo. 688, 115 S. W. 407.] This is with good reason. The master might be said to have performed that duty by providing safe appliances and entrusting their selection to the judgment of his servants, but if he does not entrust such selection to a mere servant, but undertakes to make it himself, he must exercise due care in maldng such selection. [Combs v. Construction Co., supra.] If it is so with the master it is so with one having superintending control over the men; for, as we have mentioned, the matter of furnishing safé and suitable appliances is a personal duty of the master devolving upon the vice-principal, and the latter’s conduct in that respect is to be judged by the same rule as would be that of the master if acting in person. “In controlling and directing structures, in employing and dismissing operatives, in selecting machinery and tools, thus he speaks the language of a master. Then he issues their orders to their operatives. Then he is the mouthpiece and interpreter of their will. Their voice, which is silent, is spoken by him. He, then, only speaks their executive will; not the irresponsible will of a fellow-workman or co-laborer. The corporation can speak and act in no other way. His executive acts are their acts; his negligence — 653 — is their negligence, his control, their control. He has in this executive duty no equal. He is not, while in the performance of these executive duties, only the equal of the common co-laborer or co-servant.” [Harper, by Wood v. Indianapolis & St. Louis Ry. Co., 47 Mo. 567, 580.] It may bé added, too that where, as here, one in authority produces a single appliance and expressly or impliedly directs the men to use it, there is involved something more than would a selection by a mere servant. In the latter case the co-servants would have some discretion to reject, to refuse, to go after the appropriate appliance. In the former case the selection is blended with command, direction and assurance. The selection is an implied command to use, which the servant has a right to presume is given carefully, absent danger so obvious that a reasonable man would not risk it. We are satisfied too that where the vice-principal produces- only one appliance and directs it to be used, that is the only appliance which is “provided” in attempted compliance with the duty of the master. There may be others, but if they are not produced, especially where as here their whereabouts are unknown, they are not provided but remain unprovided. We rule that defendant’s demurrer to the evidence was properly overruled. III. Defendant contends that plaintiff’s first and main instruction is erroneous because it authorizes the jury to find for the plaintiff if they believe from the evidence that the facts predicated therein “directly contributed to cause plaintiff’s said injuries.” This instruction is set out at length in our statement of facts and need not be repeated here. There is evidence in the case tending to show negligence on the part of defendant and evidence tending to show contributory negligence on the part of the — 654 — plaintiff, but no evidence whatever tending to show that there was any independent cause contributing to the injury. With the evidence in that state it has been recently held by our Supreme Court to be reversible error to give an instruction using the words “contributed to cause the injury,” for the reason that such an instruction is indefinite and inconsistent and liable to be very misleading and confusing to the average jury, either causing them to speculate as to unknown causes which might have contributed, with defendant’s negligence, to cause plaintiff’s injury, or to assume that plaintiff might recover if his injury was caused by his own negligence, contributed to by the negligence of the defendant. [Hof v. Transit Co., 213 Mo. 445, 111 S. W. 1166; Krehmeyer v. Transit Co., 220 Mo. 639, 120 S. W. 78.] Following these controlling authorities this court condemned similar instructions in the following cases: Schmidt v. Transit Co., 140 Mo. App. 182, 120 S. W. 96; Wilson v. Railways Co., 142 Mo. App. 676, 121 S. W. 1083; Garrett v. Wabash Railroad Co., 159 Mo. App. 63, — S. W. — . The reason for the ruling is fully discussed in those cases. Plaintiff suggests that there is no evidence of contributory negligence in the case. We cannot agree to this. Plaintiff testified in effect that he was an experienced machinist, familiar with the proper manner of lifting the ‘ ‘ spider, ’ ’ and that he had seen the “spider” lifted and had helped to lift it, several times, always using the four-chain apparatus. One of his witnesses, a machinist, testified as an expert, that the spider could not be raised “with any degree of safety” by using the two-chain apparatus. The plaintiff testified as already noted that while the machine was being hoisted he asked Erschen where the four-chain apparatus was and that the latter said he did mot know and that “we could do it with this all right.” 'This evidence tended to prove that plaintiff worked — 655 — with the two-chain apparatus knowing it to be unsafe and thus the question of his conrtibutory negligence arose, and having been pleaded, was in the case. But plaintiff asserts that while in the instruction he relied only upon the negligence of the defendant in providing an insufficient appliance and in directing that the spider be raised with it, there was also pleaded and proved defendant’s failure to secure “said spider from becoming unbalanced whilst being so raised,” and it was this failure, together with the negligence relied upon in the instruction, that contributed in causing plaintiff’s injury. If the pleading and proof were in the state thus assumed by the plaintiff the instruction would still be defective. In order to excuse the use of the words “contributed to cause” in an instruction “they should always he so,safeguarded as to exclude the idea that the concurring negligence of plaintiff and defendant will permit a recovery.” [Krehmeyer v. Transit Co., 220 Mo. l. c. 675, 120 S. W. 78.] The instruction should indicate to the jury what the fact was which contributed to defendant’s negligence in causing the injury, or it is indefinite and misleading [Hof v. Transit Co., supra.]; especially where, as it is claimed here, that fact is other negligence of the defendant confessedly not relied upon by the plaintiff as a basis for recovery., [Garrett v. Wabash Railroad Co., supra.] For the error in giving this instruction at plaintiff’s instance the judgment is reversed and the cause remanded. Reynolds, P. J., and Nortoni, J., concur.