Dales v. Chicago, Burlington & Quincy Railroad

REYNOLDS, P. J. (after stating the facts). — Let us consider this case in the order of the assigned errors. 1. We have, even with some prolixity, set out the facts in the case in so far as necessary to consider the demurrers, or, more accurately, requests for instructions directing a verdict for defendant. This accident occurred in Illinois and the rights of the parties are to be determined by the law of that State (Fogarty v. St. Louis Transfer Co., 180 Mo. 490, l. c. 502, 79 S. W. 664), a State which has no statute on the subject, and whose law is to be arrived at by consideration of the decisions of its courts. An examination of those decisions demonstrates that Illinois recognizes and is governed by the common or general law, under which one servant is held for the negligent acts and conduct of another, briefly, what is known as the “fellow-servant” law. The courts of Illinois also recognize what is known as the “dual capacity” rule, as has also been generally done by our own courts. [See Fogarty v. St. Louis Transfer Co., supra., l. c. 503.] We hold that the ease before us is not one for the application of either doctrine, but is one for the application of the law relating to employer and employee, the former represented in the accident by one who stood in the position of vice-principal in directing the plaintiff. On this we find no difference between our law and that — 198 — of Illinois, both, proceeding substantially on tbe lbies of tbe common law. The very best statement of tbe general law on tbe subject which we have found is in an article by former Judge John F. Dillon, in 24 American Law Review, 173, entitled “American Law Concerning Employer’s Liability,” published March-April, 1890'. There at page 189, Judge Dillon says: “In tbe general American law as I understand it, tbe doctrine of vice-principal exists to this extent and no further, viz., that it is precisely commensurate with tbe master’s personal duties towards bis servants; as to these tbe servant who represents tbe master is what we may for convenience call a vice-principal for whose acts and neglects tbe master is liable. Beyond this tbe employer is liable only for bis own personal negligence. This is a plain, sound, safe and practicable line of distinction. Wé know where to find it and bow to define it. It begins and ends with the personal duties of tbe master.” [See, also, Gale v. Helmbacher Forge & Rolling Mill Co., 159 Mo. App. 639, 140 S. W. 77.] We find nothing in tbe decisions from tbe Illinois courts that at all contradicts this doctrine. This is not a ease of .negligence in tbe use of tbe tool but of negligence in furnishing an imperfect tool. That distinguishes it from Farrar v. St. Louis & S. F. R. Co., 149 Mo, App. 188, 130 S. W. 373, a decision by the Springfield Court of Appeals which learned counsel for appellant claim is “on all fours” with tbe case at bar. Counsel are mistaken in that assumption. That case was. for tbe negligent use of tbe appliance, not for a defect in tbe appliance itself. The samé may be said of Illinois Steel Co. v. Coffey, 205 Ill. 206, also greatly relied upon by counsel for appellant. In Webster Manufacturing Co. v. Nisbett, 205 Ill. 273, also relied upon by that counsel as paralleling tbe case at bar, tbe very marked distinction is that there tbe decision is distinctly placed upon tbe ground that tbe — 199 — employee who was injured had had long experience in the use of the hammer through which the injury occurred, in the business of a blacksmith, and that with this knowledge he assumed the ordinary risks incident to handling the hammer. That is not the case here. Furthermore, the Nisbett case proceeded on the failure to perform, the promise to repair. Under the law of Illinois, the employer, is bound to exercise reasonable care in furnishing reasonably safe tools to his employees and to-keep those tools in reasonably safe condition for use for the purposes for which they are employed. [Pullman Palace Car Co. v. Laack, 143 Ill. 242, 1. c. 255.] And in that State, as well as in our own, he cannot relieve himself from the performance of that duty by delegating it to another. [Pullman Palace Car Co. v. Laack, supra; Hines Lumber Co. v. Ligas, 172 Ill. 315, 1. c. 317; Coin v. Talge Lounge Co., 222 Mo. 488, 1. c. 505, 121 S. W. 1.] Nor, under the law of Illinois, does the employee assume the risk of injury from his employer’s negligence in the discharge of that duty. [Sambos v. Cleveland, C., C. & St. L. R. Co., 134 Mo. App. 460, l.c. 468 and cases there cited (114 S. W. 567).] On the law and under the evidence, this was a case for the jury, and the verdict and judgment must stand unless there was error in the matter of giving or refusing instructions or admission or exclusion of testimony. 2. We see no error in the admission of the decisions of the Supreme Court of Illinois offered by plaintiff. The order in which testimony shall be admitted is entirely in the discretion of the trial court. Defendant had distinctly pleaded the law of Illinois as applicable and it was within the right of plaintiff, if he chose to assume that burthen, to put in such testimony as. he had tending to prove that law. 3. Careful consideration of the instructions given at the instance of plaintiff fails to disclose any re — 200 — versible error in them, any error which would mislead the jury. The first, of which complaint is made, followed the language of the petition in the case, with this addition: That it took up the defense of contributory negligence which was pleaded, thus: “If you further find from the evidence that plaintiff did not know of the said condition of said chisel and did not know that the same was not reasonably safe for the purpose for which it was being so used, and that plaintiff would not have known thereof by the exercise of reasonable care for his own safety, and that plaintiff had no means or knowledge thereof equal with those of defendant, and that plaintiff was at all said times and in relation to the accident in question, in the exercise of ordinary care for his own safety, then you will find and return a verdict for plaintiff.” The instruction, covering the whole case, correctly included in it the defense of contributory negligence which had been set up as a defense. We think.this first instruction good in law and supported by substantial testimony. The second instruction was as to the measure of damages and contains no error whatever. The third told the jury that by entering and continuing in the employ of the master the servant assumed the risk of being injured as the result of the hazard usual and incident to the employment when the business is conducted by the master with that degree of care usually and customarily exercised by reasonably prudent men engaged in conducting the same or similar business; that the servant does not assume the risk of being injured as the result of negligence on the part of the master. It is objected to this instruction that it is a generalization. It has been often held that it is error to give a mere general instruction, but following the rule, which is well settled in this State, that instructions are to be considered together, we do not think this particular instruction falls under that designation. Considering it in connection with the — 201 — other instructions given at the instance of plaintiff and of defendant, it could not possibly have confused the jury. The proposition of law stated is correct and we see no reversible error in giving it. The fourth instruction is as to ordinary care and is unobjectionable. The court gave four instructions at the instance of defendant. Reading them with the instructions .given at the instance of plaintiff, we think they fully and fairly present the issues to the jury. Nor do we think that the instruction marked 7, given at the instance of defendant, is in any way inconsistent with anything said in the first instruction given at the instance of plaintiff. The refused instructions marked B, O, D and E were properly refused. The instruction marked B was an instruction that under the pleadings and the'evidence plaintiff was not entitled to recover. We have disposed of this .point before, treating it as a demurrer, and hold that this instruction was properly refused. Instruction marked C is in substance that if the jury believed from the evidence that the injury to plaintiff mentioned in the evidence was caused by the negligence of a fellow’ workman of plaintiff while engaged in the common work of cutting the iron or steel rail mentioned in the evidence, their verdict must be for defendant. That instruction was properly refused because the question of the duty of the employer was properly covered by the first instruction, given at the instance of plaintiff, which placed the ground of recovery solely on negligence in furnishing an unfit tool. Moreover, this refused instruction was properly refused, for under the evidence and the law as applied to it, there was no question here of ‘ ‘ fellow-servant.” It is true that whether one is a fellow-servant' is an issue of fact, to be submitted to and determined by tV>, jury; but that implies that there must be some — 202 — substantial evidence that the parties were fellow-servants. Here there is no testimony which properly could lead to any such conclusion. The chisel was furnished by the representative of the master, as was the duty of the master, and there is no evidence in the case that in furnishing it, the superintendent was a fellow-servant of the plaintiff. It is also to be said of this instruction asked, that it was misleading in tending to convey the idea that the accident occurred through the negligent handling of the chisel, which as we have seen was not the issue. Instruction D sought to tell the jury that if they believed from the evidence that the risk of injury by using the chisel mentioned in the evidence was apparent to a person of ordinary care and prudence, then plaintiff assumed the risk incidental to his employment and their verdict must be for defendant. We do not think this .instruction should have been given in the language in which it was asked. Its tendency was to mislead the jury in stating a mere abstract prop*osition of law without in this instruction or in any others advising the jury as to what constituted an assumption of risk incident to the employment. Instruction marked E was to the effect that if the jury believed from the evidence that the piece of iron or steel which struck plaintiff’s eye was detached from the rail which was being cut at the time men-_ tioned in the evidence, plaintiff was not entitled to recover. There was no substantial evidence on which to rest this, and the fact that the jury must find that the piece of iron which hit plaintiff in the eye came from the head of the chisel, was so plainly and distinctly placed before the jury in other instructions given, that this instruction was unnecessary and its refusal not reversible error. 5. We think no error was committed in refusing to strike out all the testimony of plaintiff to the effect that the chip fell from the chisel, for the very sufficient — 203 — reason which was assigned by the learned trial court at the time he ruled on it, namely, while plaintiff had stated in his direct examination that such was the fact, the subsequent testimony explaining how he knew that fact was before the jury and the probative force of plaintiff’s testimony was for their determination from all the other testimony in the case. We see no error in the action of the court in refusing this request. 6. There was some conflict in the testimony as to whether the place at which the witness Fache had thrown this chisel was nine hundred feet from the place of the accident. However much witnesses may differ on a question of distance, the material fact in this case was whether Fache had thrown this particular chisel' away and had called the attention of the foreman to the defect in it. Where he threw it, or how far that was from the place where it was used or picked up, was entirely immaterial and there was no error committed in admitting the testimony of the witness Fache concerning what he had done with it, even if he contradicted himself or was contradicted about it by other witnesses. 7 and 8. We can discover no error whatever in the action of the court in sustaining the objection of plaintiff to the cross-examination of the witness Koutroules. This disposes of the assignments of error seriatim. Finding no reversible error, the judgment of the circuit court should be and is. affirmed. Nortoni and Caulfield, JJ., concur.