Page images
PDF
EPUB

recollect just what he said, but he gave his consent in that way. He just said: 'All right;' to write his name. 'Write my name, and I will make my mark.' Q. You say he had been nervous for how long? A. I have known him for twenty-two years, and he was that way when I first knew him. Q. How long did he live after that? A. That was in 1865. Q. You mean 1885, do you not? A. Yes, sir. And he died this last spring a year ago. Q. You mean two years ago, do you not? A. Yes, sir. In 1888 he died. Q. You said you got the numbers of the land, the description, in what way? A. From him and Weet there together. And I knew something about the numbers myself, and how the land laid. Q. Without reference to any written memorandum at all? A. Yes, sir. Without any memorandum. If I am not mistaken, he quoted the numbers. He commenced and talked about the numbers, and the two together gave me the numbers of the land. Q. What was the condition of his mind that day? A. Well, sir, as far as I have been acquainted with the old gentleman,-of course, when I first knew him he was stouter physically, he had mind enough to say that he wanted to take care of himself. Of course, he was older and weaker, and talked weaker. It was the same as any other old man. Q. Did he fully understand what he was doing? A. I thought he did, or I would not have made the deed. Q. You have been acquainted with the old man twenty-two years? A. Yes, sir. Twenty-two years. Q. What character of a man was he as to mind? A. I never heard anything but he was a man of ordinary mind. Q. What kind of man was he as to memory of events? A. Well, sir, his great pride, outside of talking of his own business, was to talk scripture and history. And he was very well read in regard to those matters, and would talk considerably about matters he had read in his younger days. Q. What was the manner of his conversation, as to whether it was connected and intelligent? A. He was considered, so far as I know, a very intelligent man. He was economical and saving, and I used to hear him complain about his boys not being saving." There was considerable testimony for plaintiff tending to show that old Mr. Likins was feeble in mind when the deed was given, and abundant testimony to the effect that he had fair business capacity at that time.

No good would be done by a review of the evidence in detail. We have all given it due consideration. We conclude from it that, although the old man was weak in body, he fully understood the transaction now under review, and did his part in it freely and intelligently. The scene described by the justice gives a very correct impression of the old man, confirmed by much of the other evidence. He exhibited many infirmities of age, and many of its eccentricities; but, with all, was no man's fool or puppet. One venerable neighbor, who had known him 30 years, gave

a quaint and just estimate of him, when asked as to "his business sense," by the reply that he had as much of it as any of his boys; "he knowed more the worth of a dollar than all three of his boys put together." Certainly, the facts attending the execution of the instrument do not tend to establish any want of business capacity or understanding on the part of the principal figure in the transaction, or any attempt at undue influence or overreaching on the part of the plaintiff. Considering the father's prior gift of an 80-acre tract to each of his other sons, there was nothing unjust in his giving William 80 acres. And in view of the proposed improvement of the property (afterwards made by William), for the benefit and comfort of his father and himself, and of the understanding that the former was to be cared for during the residue of his days, the gift of the other 80 acres was not an extraordinary or unreasonable performance. It was one which the father had the right to indulge in, if his act was free and intelligent. We think it was. We consider that the testimony sustains the gift as the voluntary act and deed of the grantor. The learned trial judge was in error, we believe, in pronouncing a different conclusion in the decree passed in the circuit court; and accordingly it is now reversed, and the cause remanded, with directions to dismiss the petition, at the cost of plaintiff.

BLACK, C. J., and BRACE and MACFARLANE, JJ., concur.

RYAN v. McCULLY.

(Supreme Court of Missouri, Division No. 1.
July 9, 1894.)
INJURIES TO EMPLOYE-NEGLIGENCE OF FELLOW
SERVANT.

1. In determining whether plaintiff has a case to be submitted to a jury, he is entitled to have the evidence viewed as favorably for him as the facts permit, and to have also the benefit of every reasonable inference therefrom.

2. A laborer, employed in building a bridge, and an engineer, operating the hoisting machinery for its construction, are fellow servants where both belong to the same working force, under the orders of the same foreman; and the master is not liable for an injury to the laborer from the negligence of the engineer.

3. The master's order to lower a beam during the process of constructing a bridge does not render him liable for the act of a servant (charged with the execution of the order) in lowering the beam so carelessly as to inflict injury on a fellow servant.

4. Negligence is an affirmative fact, to be established by proof, before there can be any recovery on account thereof, and it is a question of law whether or not the evidence tends to prove such negligence in any case. (Syllabus by the Judge.)

Appeal from St. Louis circuit court.

Action by Lizzie Ryan against William McCully for the death of Thomas Ryan. Judgment for defendant, and plaintiff appeals. Affirmed.

[blocks in formation]

BARCLAY, J. This is an action for statutory damages ($5,000) for the death of Thomas Ryan. Plaintiff is his widow, and charges defendant with causing her husband's death by negligence. Defendant's answer makes a counter charge of contributory negligence on the part of Mr. Ryan, but admits the fact of his death, and that he was in the employ of defendant. The allegations in the petition which indicate the ground of plaintiff's claim are as follows: "Plaintiff states that on the 10th day of December, 1891, her said husband was employed by defendant to assist in erecting the scaffolding for an iron bridge which said defendant was building across the railroad tracks on Twenty-First street in this city. That in the course of his employment he was required to stand upon a wooden beam, which was only 12 inches square and 18 feet long. Said beam rested on two long beams, one under each end, and was suspended 20 feet from the ground. There was no railing, ladder, guard, or any other support along said beam to protect her husband from falling while standing on said beam. That he was standing on said beam, assisting, with other of defendant's employés under the immediate direction of defendant's foreman, to lower and place on the aforesaid crossbeam, parallel to the beam on which he was standing, a beam of like size as the one on which he was standing. That said beam thus being lowered was suspended above the crossbeams by ropes from the derrick, which was operated by steam power, and conducted by defendant. That in lowering said beam defendant negligently permitted one end of said beam to strike with violence against said crossbeams, which caused plaintiff's husband to lose his balance, and fall to the ground, and thereby causing his instant death. That defendant knew, or by exercise of ordinary care could have known, that it was dangerous to plaintiff's husband to cause him to stand on said beam while engaged at his work, as aforesaid, without any support or means to protect him from falling therefrom. That the death of plaintiff's husband is due to and was caused by the negligence of defendant, Wm. McCully, in failing and neglecting to furnish to her said husband a reasonably safe appliance or platform on which to stand while engaged at his said work, as aforesaid, and in negligently and unskillfully lowering the suspended beam so that one end thereof struck one of the crossbeams, thereby increasing the insecurity of his position, and aiding him to fall. That by reason of the death of her husband, caused by the neg ligence of defendant, as aforesaid, plaintiff has been damaged in the sum of $5,000," etc. The case came to trial before Judge Fisher

and a jury. At the close of plaintiff's testimony, the court gave an instruction in the nature of a demurrer to the evidence, which forced plaintiff to a nonsuit, with leave, etc. In due time she moved to set aside the nonsuit, but the court denied the motion. Haying duly saved exceptions to these rulings, plaintiff brought the case to the supreme court by appeal.

The question is whether, under the facts disclosed by plaintiff's evidence, she could properly go to the jury. In considering it, plaintiff is entitled to have the evidence viewed as favorably for her as the facts permit, and to have the benefit of every reasonable inference therefrom as well. The relationship of plaintiff to the deceased was admitted, as also that he was in the employ of defendant at the time of his death. Plaintiff introduced three witnesses, Messrs. Moore, Van Hook, and Rick, in the order indicated. We shall, however, first note the evidence of the last named, as he explains more fully than the others the particulars of Mr. Ryan's mishap. Mr. Rick testified as follows (according to plaintiff's abstract on this appeal): "I was Mr. McCully's foreman in charge of the men while they were erecting that portion of the false work on which Ryan was at work at the time he fell and was killed. I hired him that day, believing him to be a bridge man, and competent to do the work. He told me he was a bridge man. He was at work only about an hour when he fell. The bridge proper is made of iron, and, in order to place the iron in position, we erected a scaffolding, called 'false work.' This was done by standing upright timbers, 12 inches square, and of sufficient height, which was about 20 feet. Several of these are set up, extending across the width of the structure. Then on the top of these uprights there is a large beam laid down, each of the uprights supporting it. Now, this may be called a 'bent,' and at intervals of 14 or 16 feet there are like bents, erected in the same manner, for the whole length of the work. Now, on top of these bents or crossbeams are laid timbers extending lengthwise of the bridge. It was on the end of one of these beams where it crossed a crossbeam that Ryan was standing at the time he fell. We had a traveler (that is what the other witnesses called a 'derrick') for hoisting up timbers and placing them on top in their proper places. We would first erect a portion of this false work, and, when the iron stretchers and other parts of the bridge were in place, and the false work was no longer needed, we would remove it along on the top to where it was needed at another place. We did this with the traveler, The traveler had a post on the front end, which was rigged as a derrick, with ropes and pulleys. At the time of Ryan's fall we were working on the last span, and were hoisting one of the long beams which I have described, intending to move it southward

[blocks in formation]

four or five beams already in place, and I used great care to see that the work was done safely. It was my duty to see that the work was safe. The beam was about to be lowered. I gave the signal to the engineer to lower away. The derrick was operated by steam. The engineer lowered carefully, and the beam swung around towards Ryan, but did not strike or touch him. He was standing on the end of one beam. There was the ends of two beams together, and under them a crossbeam, so that he had plenty of room to stand safely. When the beam swung to him, he stepped backwards and off. The beam was lowered easily, and did not shake the scaffolding, or cause his fall. He lost his presence of mind, and stepped backwards, and fell to the ground. If he fell from the place I say he fell, his body would have struck the ground south of the crossbeam, and could not strike the ground north of the crossbeam on which I say he was standing." The testimony of Mr. Moore is that he was working at the wire mills near the bridge, and saw the accident, at about 1 o'clock p. m. He describes it thus: "The men who were working on the bridge and scaffolding had just gone to work. I was standing near, with three or four others, looking up at these men at work on this bridge. It was not time for us to go to work. Some one spoke, and at the same instant I heard a noise as if some one fell on this bridge; and I cast my eyes up, and I saw one passing through the air, and some one said, "There is a dead man fell from the bridge.' I looked, and I saw that it was the man that I saw on the top. At the time he fell there was a derrick on top of the scaffolding, and the men were hoisting a long beam in the air above the top. When I saw it, just before he fell, the beam was near him, and about two or three feet above the top. When I heard the noise, and saw him fall, I looked up, and saw that the beam which had been in the air was down on the crossbeams of the scaffolding. I do not know what made him fall, but heard the sound of the beam falling, and looked up at the same instant, and saw him falling to the ground. The fall killed him. I was standing about 60 feet from the place he fell. There was nothing to obstruct my view of him while he was at work, or while he was falling." Mr. Van Hook testified as follows: "I was walking on the railroad tracks, and I got within about 100 feet of the Twenty-First street bridge. I was coming east. I saw this man standing on the timbers, and other men north of him, working. I heard a sort of thumping noise like a timber dropping, and that drew my attention to where the false work was again, and I saw a man fall from me, southeast like, to the ground. I had been looking at the false work just prior to the fall. There was a derrick on the top of the scaffolding, and the men were hoisting a large timber,

about 12 inches square and about 16 or 18 feet long. The sound was like the dropping of the timber on the other timbers that made the top of the false work. When I looked up, the man was in the act of falling from the beam on which he was standing, and the beam that had been in the sling of the derrick was down, laying crossways. It did not seem like he stepped off; it seemed like he was thrown off or tilted off. There were several timbers laying lengthwise on top of the false work, and Ryan was standing on the beam to the west,-the nearest one to me, and there was nothing to obstruct my view of him. I think the noise I heard was the noise caused by the beam falling down on the top. At the time he fell he was standing on the west beam, which extended lengthwise of the bridge, and about three feet north of the crossbeam. He was standing over a crossbeam, and when he fell his body struck the ground a little north of the crossbeam." At the close of Mr. Rick's examination, plaintiff's counsel moved to strike out his testimony on the ground of surprise, but the court denied the motion. It does not appear that any exception was saved to this action. Then the defendant's counsel showed witness Rick a pencil drawing of the scaffolding, and the witness marked the crossbeam on which Ryan was standing at the time he fell. Thereupon the same drawing was shown to the two former witnesses, Moore and Van Hook, both of whom declared that Ryan did not stand on the crossbeam, or over it, as indicated by the witness Rick, but that, at the instant of his fall, he was standing on the west beam, about three or four feet north of said crossbeam.

The foregoing is the whole of plaintiff's case as presented here. We have stated it fully, in view of the conclusion we have reached, and of our desire to give every detail of the evidence the value to which it may be entitled. If the statement of witness Rick is accepted, plaintiff has no standing in court, as her counsel concedes. But laying it, for the moment, out of view, what remains to justify an inference of defendant's negligence, especially any inference of the particular negligence charged in the petition? It is not now claimed, on plaintiff's part, that there was negligence in failing to have a platform for Mr. Ryan to stand on while at work. Plaintiff has submitted here only the point that defendant was negligent in letting the beam loose from the derrick so as to fall upon the other beam, already in position, thus jarring and knocking Ryan from his standing place. Mr. Ryan and the man operating the derrick or "traveler" were engaged in a common employment. If his death is ascribable to the negligence of the operator in letting the moving beam jostle or jar against that on which he was standing, then the master would not be liable to plaintiff for that negligence under the settled law of this state. There is nothing in the case connecting the

foreman, Rick, with any such negligence, elther by any order or act of his in reference to the moving of the beam. Neither Mr. Moore nor Mr. Van Hook refers to any act or order of the foreman. The foreman declares that he did not know what made Ryan fall, though his evidence tends to corroborate the inference to be drawn from the testimony of Van Hook. The latter's statements would support a finding that Ryan was thrown off by the dropping of the beam (moved by the derrick) upon the cross timber. Assume, for the moment, that that would tend to prove negligence in the handling or moving of the beam, to make defendant liable therefor something more must be shown to indicate that such negligence was that of the master, as distinguished from the negligence of the fellow workmen of Ryan, who were operating the derrick. Rick was not operating it. He had general charge of the work, but the only evidence as to any directions by him in regard to the movement of the beam is his own. According to that, when the beam was ready, he gave the signal to the engineer to "lower away," and the engineer, as he says, did so "carefully." A direction to lower the beam would not render the master liable for the act of the engineer in permitting the beam to abruptly fall in such a way as to knock Ryan off. The beam had to be lowered and put in place.

It was the engineer's

duty to perform that act with ordinary care by means of the derrick. The order to lower it did not authorize or require the engineer to do so carelessly. If he did so, there would be no negligence in the direction of the work. The negligence would be in the manner of executing the order. That negligence of the engineer would fall within reach of the rule which exempts the master from liability to one servant for any want of ordinary care on the part of another engaged in the same work under a common employment. Mr. Ryan and the engineer belonged to the same working force, and were under the orders of the same foreman, who was present, supervising the labor of both. The evidence does not indicate any insufficiency of the machinery used in doing the work, nor is any negligence ascribed to defendant, in the petition or in argument, on that account, or for any incompetency of the engineer. We have discussed the facts without reference to Rick's statement that he saw Ryan step off the beam. We conclude that in no aspect of the evidence could an inference of negligence on defendant's part be reasonably drawn. Negligence is an affirmative fact, to be established by proof, before there can be any recovery on account thereof. It may often be shown by inferences from other facts, but the latter must reasonably and fairly warrant such an inference. It is a matter of law, and part of the duty of the court, to determine whether or not facts shown in evidence have such a tendency. In the case at bar it is very clear that the most favorable view of plaintiff's

testimony would not authorize an inference that Ryan's death resulted from any pegligence for which defendant is liable to respond in damages under the existing law of this state. Gibson v. Railroad Co. (1870) 46 Mo. 163; Steffen v. Myer (1888) 96 Mo. 420, 9 S. W. 630; Relyea v. Railroad Co. (1892; Mo. Sup.) 20 S. W. 480. The learned trial judge was right in so declaring. The judgment is affirined.

BLACK, C. J., and BRACE and MACFARLANE, JJ., concur.

CORNWELL et al. v. ORTON et al. (Supreme Court of Missouri, Division No. 2. June 12, 1894.)

TRUSTS-LIMITATION OVER-SUBROGATION.

1. A deed to a trustee whereby he covenants to allow the cestui que trust full enjoyment of the premises, with all the rents, profits, and proceeds, for her sole use and benefit; and, at the written request of said cestui que trust, to sell, mortgage, convey, lease, or otherwise dispose of the premises, and pay over the net issues or proceeds to said cestui que trust as she may direct; and, at her death, to convey the premises or proceeds in his hands as she may by will or other writing direct,-creates an executed dry trust, and vests in the cestui que trust an equitable fee, on which no remainder can be limited, in default of her appointment.

2. A husband gave notes for the price of land conveyed in trust for his wife, and these were secured by mortgage on the land. After the wife's death, the husband, supposing that he owned the land, and not merely curtesy in it, paid off the mortgage with money raised on his own notes and mortgage. Held, that neither he nor his grantees were subrogated to the security of the original mortgage as against the wife's heirs.

Appeal from circuit court, St. Louis county; W. W. Edwards, Judge.

Ejectment by Frederick J. Cornwell and others against Etta B. Orton and others. Judgment for defendants. Plaintiffs appeal. Reversed.

This was an action of ejectment commenced in the circuit court of St. Louis county, by the heirs at law of Mrs. Catherine Cornwell, deceased, for 18.84 acres of land, the south part of lot No. 3 of a survey and subdivision of the W. 1⁄2 of the N. W. 1⁄4 of section 12, township 44, of range 5 E., made by Isaac Woods, surveyor, which said lot 3 contains 28.84 acres, and is described by metes and bounds in a deed from Robert A. Yeats and wife to John A. Goodlett, trustee for Catherine Cornwell, of date October 15, 1859, and recorded in the office of the recorder of deeds of the city, then county, of St. Louis, in volume 241, page 297. The ouster is laid as of January 2, 1890. Damages and rents and profits are also asked. The answer admits possession, and denies all the averments of the petition. For further answer, defendants alleged title in fee simple in Mrs. Etta B. Orton. And for further answer, that on October 15, 1859, the said real

estate, in plaintiffs' petition described, was owned by and in possession of one Robert A. Yeats. That, being so, the owner thereof, said Robert A. Yeats, by his deed of conveyance of that date, in which his wife lawfully joined, bargained, sold, and conveyed the same, with other property, to one John A. Goodlett, for a recited consideration of $3,172.40, which sum, said deed recited, was paid to said Yeats by said John A. Goodlett. That said conveyance was made to said Goodlett "to have and to hold the same, with all the rights, privileges, and appurtenances thereto belonging, or in anywise appertaining, unto him, the said John A. Goodlett, his heirs and assigns, forever," in trust for certain purposes and uses more specifically set forth in certain covenants of said John A. Goodlett, included and contained; that is to say, the said John A. Goodlett, by said deed, covenanted and agreed that he would suffer and permit Catherine Cornwell, without let or molestation, to have, hold, use, and enjoy the aforesaid premises, with all the rents, issues, profits, and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her husband, James Cornwell, and wholly free from his control or interference, and from his debts, in such manner as she might think proper; and that he would, at any and all times thereafter, at the request and direction of the said Catherine Cornwell, expressed in writing signed by her or by her authority, bargain, sell, mortgage, convey, lease, rent, or otherwise dispose of said premises, or any part thereof, and would pay over the rents, issues, profits, and proceeds thereof, which might come into his hands, and not otherwise liable to her, the said Catherine Cornwell, in such manner as she should in writing direct or request; and that he would, at the death of said Catherine Cornwell, convey or dispose of the said premises, or such part thereof as might then be held by him under said deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times, as said Catherine Cornwell should, by her last will and testament, or by any other writing signed by her or by her authority, direct or appoint, and, in default of such appointment, then that he would convey said premises to the said James Cornwell, his heirs or assigns. That it was the intention of all parties to said deed to thereby vest a life estate in said Catherine Cornwell, with power of disposition, and to vest in said James Cornwell a remainder over in case of failure on the part of Catherine Cornwell to dispose of the same. It is also charged that Mrs. Cornwell did not pay any of the purchase money for said lands, but that her husband paid it all; that, after her death, Goodlett, the trustee, under a mandate of the St. Louis land court, executed and delivered a deed to said James Cornwell conveying all

of said lands to said James Cornwell and his heirs. The title is traced, through various mortgages and deeds of trust executed by James Cornwell, down to Mrs. Orton. There is also a plea of valuable improvements made by Halle, one of the purchasers. The answer prays for a decree for title in Mrs. Orton, and for general relief. A reply denying all new matter was filed in due time. A jury was waived, and the cause was tried to the court on March 28, 1892.

Robert A. Yeats was the common source of title. The plaintiff read in evidence a deed from Robert Yeats and wife, of date October 15, 1859, to John A. Goodlett, trustee for Catherine Cornwell, recorded in book 241, page 297, office of recorder of deeds in the city of St. Louis, conveying to said trustee said lot 3, of 28.84 acres, "to have and to hold the same, with all rights and appurtenances thereto belonging, to him and his heirs and assigns forever." "In trust, however, to and for the sole and separate use, benefit, and behoof of the said Catherine Cornwell, wife of said James Cornwell, and the said John A. Goodlett, party of the second part, hereby covenants and agrees to and with the said Catherine Cornwell that he will suffer and permit her, without let or molestation, to have, hold, use, occupy, and enjoy the aforesaid premises, with all the rents, issues, profits, and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband, and wholly free from his control or interference, and from his debts, in such manner as she may think proper, and that he will, at any and all times hereafter, at the request and direction of the said Catherine Cornwell, expressed in writing signed by her or by her authority, bargain, sell, mortgage, convey, lease, rent, or otherwise dispose of said premises, or any part thereof, and will pay over the rents, issues, profits, and proceeds thereof which may come into his hands, and not otherwise liable to her, the said Catherine Cornwell, in such manner as she shall in writing direct or request, and that he will, at the death of the said Catherine Cornwell, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times, as the said Catherine Cornwell shall by her last will and testament, or any other writing signed by her or by her authority, direct or appoint; and, in default of such appointment, then that he will convey said premises to the said James Cornwell, his heirs or assigns; and the said Roberts A. Yeats, party of the first part, hereby covenants that he, and his heirs, executors, and administrators, will warrant and defend the title to said premises, and every part thereof, to him, the said party of the second part, and his heirs and assigns, against the lawful claim or claims of all and

« PreviousContinue »