therefore plaintiff made no case for the jury. Plaintiff in turn complains of the giving of four instructions (2, 4, 5, and 7) on behalf of defendant, all of which will appear in due course. His counsel argue that the motion for a new trial was well ruled because of error in those instructions; further that, though the court did not specify other grounds in its order sustaining the motion, yet, if there be other grounds for a new trial present, then such other grounds sustain the order granting a new trial, and, on this head, his counsel invoke the doctrine that in grant trial court where the verdict is against the weight of the evidence. From that angle also they contend (that element being present and noticed in the motion for a new trial) the order granting a new trial was well enough. Such substantially is the case. Any other facts germane to a disposition of points ruled will appear further on in due order. cording to plaintiff's evidence, the upper end of Brown's ladder rested either on a joist or on the shaft to one side of the dead pulley. Plaintiff thinks it was the joist at the ceiling. The upper end of plaintiff's ladder rested against the shaft on the other side of the dead pulley. Defendant put in proof tending to show that plaintiff's ladder rested against a wheat bin, or "stock hopper," a little to one side, but the divergence is immaterial. When Brown took his position on the long ladder to put on the belt, he was in a position to look down on plaintiff in position on the short ladder. On his part plain-ing a new trial there is a discretion in the tiff would also look down but away from Brown. Standing on the narrow rung of the ladder, to lean over and lift so heavy and stiff a belt, it was necessary for plaintiff to brace himself against something, and he did brace himself against the pulley. In this condition plaintiff handed up slack once and Brown took it. Plaintiff then reached down to pull up more of the slack, warning Brown at the time to be careful. All sides agree that it was customary and necessary for the man manipulating the belt on the pulley to give warning to the other man when the belt began to take hold or crawl so that he might let loose or otherwise protect himself against its going on with the full force of the driving pulley. Plaintiff expected such warning, but says he never received it. To the contrary, according to his testimony, when his face was toward the floor and he could not see Brown's hands or the position of the belt on the dead pulley, Brown put the belt on while plaintiff, so on the rung of the ladder, was in the very act of stooping over and pulling on it from below to assist him, and, the motion going on suddenly and without warning, he was thereby thrown violently to the floor, and was gravely injured in having his hip fractured. Brown, testifying for defendant, says he gave warning to plaintiff at the crucial instant, but at the same time says he did not know plaintiff had hold of the belt at that time or at any other time. As we gather it, his idea was that plaintiff was to use his hands in turning the dead pulley, not to hand up the slack. In other words, he (Brown) with his one hand was to lift the 75-pound stiff belt and put it on the pulley without plaintiff's touching it. To contradict the theory that he was expected to manipulate the pulley itself, plaintiff testified (and he had other testimony to the effect) that it would take five or six horse power to turn the dead pulley. With the proof as outlined, defendant offered a demurrer at the close of plaintiff's evidence in chief, and again asked a mandatory instruction at the close of the whole case, both of which were refused, and now on appeal its counsel argue not only that the questioned instructions were good, but that plaintiff and Brown were fellow servants in and about the matter of putting on the belt, and I. Of Defendant's Demurrer (and Herein of the Mandatory Instruction). [1] In their original brief counsel did not make the point that Brown and Barker were fellow servants, and hence the demurrer lay. It is made in their reply brief for the first time, and is there justified because plaintiff insists on sustaining the order granting a new trial, not only on the specifications made by the trial judge, but on other grounds as well. The appearance of the point is therefore late and somewhat by way of afterthought or counterthrust. Assuming, without deciding, that a defendant may appeal from an order granting a new trial and have the order reversed because plaintiff at the first trial did not make out a case (thereby taking away his chance of making one at the second trial), we proceed to dispose of the demurrer and the mandatory instruction on their merits, applying the theory that, if plaintiff made no case, he could not complain of the verdict, or of defendant's instructions (Fritz v. Railroad, 243 Mo. loc. cit. 69, 148 S. W. 74), and hence was not entitled to a new trial. In our opinion, the doctrine of fellow servant does not bar recovery in this case as a matter of law. This because there is no dispute on this record but that Brown was the superintendent of the mill, and, as such, had exclusive supervision of its operations and of the men employed therein including the two millwrights, Bennett and Barker. The whole case runs on the theory that Brown, both in rank, capacity, and act, represented the master. To say that Brown and Barker were in a common employment is to say that the captain of a ship and a sailor are in common employment, because they are both, in a general sense, engaged in sailing the ship. The facts, then, make it a typical case of Superintendent Brown being the vice principal of the corporate master. Unless his eye, voice, hand, and acts were the master's, then the master on this record was absent | position; that is to say, he may at the same from that mill, and neither acted per se or per alium there at any time. This general relation obtained, too, in the very act of putting on the belt. Brown, for the master, appointed the time, directed the method, and assumed an attitude of a superior to a subordinate in the performance of that service. Let us copy a bit of the record on the point and from that discern the trend of the whole of it (Brown being on the stand): er.' "Q. Tell us what you said to him. A. Well, some time before we put the belt on I was up on the floor he was working on, and I told him-I says, 'We will put the belt on, Mr. BarkQ. Speak up so that I can understand. A. I says, 'We will put the belt on when you get your work finished up, when you get that job completed.' He was connecting the power to the lower part of the agitator. Q. Didn't you mean by that a direction to come and assist you? A. I told him we would put the belt on. Q. You were right there and had a right to direct him, didn't you? * * ** A. He was working under my directions and instructions. * Q. He was there subject to your direction and instruction? A. Yes, sir. Q. And you told him-you said you would put that belt on. Didn't you mean that as a direction to assist you whenever you got ready to do so? A. It would mean that. Q. That was what you meant him to understand, wasn't it, when you said that? A. Yes, sir." time be a fellow servant and an agent or representative of the master. There are certain duties which are personal to the master, and for the nonperformance of which he is liable to his servants. These duties may be delegated to a foreman or even to a servant, and the master is still liable for their nonperformance. Again, cases often arise where the master becomes liable by reason of the fact that he undertakes by himself or through a representative to do certain things which might have been left to the servant to perform." The premises considered, defendant's demurrer and mandatory instruction were well ruled below. II. Of the Given Instructions for Defendant Alleged to be Erroneous. Of the series of instructions given for defendant, plaintiff complains now of the second, fourth, fifth, and seventh, and his counsel argue that the order granting a new trial may stand on the theory one and all were erroneous. They read: "(2) The jury are instructed that there is no evidence in this case that the condition of Mr. Brown's left hand directly caused, or directly contributed to cause, the plaintiff's injuries (if any), and your finding on that issue must be for the defendant." "(4) Even if the jury believe from the evidence that the witness Brown was plaintiff's superior officer, and that said Brown was negligent in the performance of the work in which he and plaintiff were engaged at the time plaintiff claims to have been injured, and that such negligence was the direct cause of plaintiff's injuries (if any), yet, if you further believe from the evidence that such negligence consisted solely in Brown's choice of the method of place performing such work, and that plaintiff and defendant were, or, by the exercise of ordinary care, should have been, equally advised that such method was not reasonably safe (if it was not), and of all the risks and dangers (if any) incident to the performance of such work according to such method, then your verdict must be for the defendant. "(5) The jury are instructed that the plaintiff, in entering the employ of defendant and continuing to work for it, assumed the risks (if any) there were growing out of any danger there may have been in doing the work at which he was engaged in the usual and ordi It would be unprofitable to reagitate the vexed question, Who is a fellow servant? or to reformulate or reannounce the doctrine of this court in that behalf. Error often lurks in generalities, and no rule can be laid down that would fit all cases. It would be a bold judge who said that appellate courts had always been able to hold a steady and even voice in promulgating or applying general principles on this head. Cases may be found that approach the matter from this, that, or the other angle (including that of "dual capacity"); but no soundly reasoned case can be found, I think, where the master had a conceded vice principal present, as here, and where such vice principal personally, by virtue of being master and in the line of his rank and duty, took charge of a transaction and injured an employé negligently by ex-nary way. If, therefore, it appears from the posing him to extra hazard, or by making his field of operations unreasonably unsafe, where the doctrine of fellow servant was allowed to bar recovery. The reasoning and facts of many cases sustain that view of it. For example: Hollweg v. Telephone Co., 195 Mo. loc. cit. 156 et seq., 93 S. W. 262, and cases cited; Russ v. Ry. Co., 112 Mo. 45, 20 S. W. 472, 18 L. R. A. 823; Burkard v. Rope Co., 217 Mo. loc. cit. 480 et seq., 117 S. W. 35; Bien v. Transit Co., 108 Mo. App. 399, 83 S. W. 986; Dayharsh v. Ry. Co., 103 Mo. loc. cit. 576 et seq., 15 S. W. 554, 23 Am. St. Rep. 900; Miller v. Ry. Co., 109 Mo. loc. cit. 356 et seq., 19 S. W. 58, 32 Am. St. Rep. 673; McIntyre v. Tebbetts, 165 S. W. 757, not yet officially reported. In the Miller Case, supra, Black, J., summarizes the grounds of liability in this acceptable way: "There is no doubt but a foreman or other representative of the master may occupy a dual evidence that the plaintiff's injuries (if any) were the result of such risk, then defendant is not in law at fault therefor, and it is your duty, without regard to the other questions in the case, to return a verdict in its favor." "(7) Plaintiff was bound to use his senses and intelligence and experience in and about the doing of his work, and if he failed to use either to the extent to which a person of ordinary care of his age and experience would have used them under the circumstances as they existed at the time he was injured, and if such failure directly contributed to cause his injuries (if any), then he is not entitled to recover in this case, and you must find for the defendant, and this is so even though you should find that the defendant was also negligent or failed in some duty it owed to plaintiff." instruction No. 2 was correct attend to more [2] (a) To determine whether defendant's of the record: The petition describes superintendent Brown as a man "who was physically incapacitated to do such work," meaning thereby the work of putting on such a belt in the way adopted. Evidently, at least, | ging Brown's crippled hand into the case, defendant's counsel had made reference in and though the court, without committing his opening statement to a crippled hand of Mr. Brown, and had advanced the theory that plaintiff knew all about it. We conclude so from the subjoined questions propounded to plaintiff when on the stand in chief and the answers thereto: "Q. Now, you heard Mr. Boyle's statement here about Mr. Brown having a crippled hand? Did you know about that? State what the facts were in regard to that. A. That is a false statement; I didn't know it. I never knew he had a crippled hand until after the thing happened, because we had never done any work with him or been intimately associated with him. Q. Which hand was it that was crippled? A. I think it is his left hand." Presently when one Remley was on the stand for plaintiff the latter's counsel sought to show that Brown had a crippled hand. Thereat defendant's counsel objected to the testimony because it "had no part or cut no figure in this accident, as shown by plaintiff's own testimony." On this objection plaintiff's counsel withdrew the challenged question. With the record in this fix, defendant's counsel, not content, later opened up the matter anew on their own hook. When Brown was on the stand one of them propounded questions and received answers as follows: error, might have left the evidence stand as a circumstance for what it was worth in connection with all the other facts and circumstances, yet we cannot see that the merits of plaintiff's case were materially affected by the instruction, even as broad as it is. Hence, if there was no other error at the trial, the order granting a new one could not well stand on such a narrow and precarious point. [3] (b) In disposing of the fourth instruction, attend further to the record: Defendant's principal witness, its only reliance, was Superintendent Brown. As already indicated, there is substantial agreement between him and plaintiff on the necessity of notice to the helper at the precise time the principal actor "feels" the belt beginning to crawl or bite on the dead pulley. Now, plaintiff says he received no such notice, though he was depending on it. Brown seems to admit the need of it and the right of dependence on it. He acquits himself by saying he gave it in this form, "Look out," and received the response from plaintiff, "All right," or "Let her go." As in the very old and quaint doctrine noticed by Abbott and borrowed from Roccus (Abb. on Shipping, 371): "If the mice eat the cargo and thereby oc "Q. Is this hand impaired as to strength by reason of the bent condition of these two fin-casion no small injury to the merchant, the gers? A. No, sir; I have as much strength as I ever had in the right hand. Q. Did the condition of this hand in any way prevent you in doing the work of putting on that belt? * master must make good the loss, because he is guilty of a fault; yet if he had cats on board his ship he shall be excused' Q. Well, just describe to the jury in what way -so here, this master stands on notice for you used or did use this hand, if at all, and his excuse. Notice is the cat that eats the what, if anything, the condition of the hand mouse, negligence. It would be to read this interfered with or affected it? A. Well. I didn't whole record with inattention not to see use this hand at all. All I used this hand for was on the ladder to support myself on the that the sharp turning point-the vital issue ladder-hold the ladder. I put the belt on--in the case rests on the timely giving of raised the belt-with my right hand." When plaintiff came to his instructions, he tendered no issue whatever on the condition of Brown's left hand and made no reference to the physical incapacity mentioned in his petition. that notice. If the jury believed Brown on that issue, then plaintiff's case falls to the ground. If the jury believed plaintiff, then a clear case of negligence was made out on the part of the master, whose alter ego Brown was; and so, in effect, the case was put to the jury in plaintiff's chief (and only The real question, then, is: In the light of the whole record, was it error to give instruc-general) instruction herein before set forth. tion No. 2 for defendant? To support the instruction defendant's counsel argue after this fashion: "It would appear from the record that the issue was not before the court, but, evidence being admitted tending to show that the witness Brown had a crippled hand, it was proper for the court to limit its effect by instruction." But it will be observed that the instruction does not limit the effect of the evidence. Contra, it is so worded as to entirely destroy its effect. Presently we will set forth facts from which we can get at Brown's theory of how the accident happened, but for present purposes it is sufficient to say that neither in his nor in plaintiff's theory did the crippled left hand of the superintendent connect itself in a causal way with the accident. We conclude, then, that although defendant must stand sponsor equally with plaintiff for lug The ladders used by Brown and plaintiff had iron spikes below, but nothing to fasten them above. As said, Brown's leaned against the shaft or a ceiling joist, and plaintiff's leaned against the shaft or a "stock hopper." Mr. Brown says, in substance, that the belt was stiff and required strong pressure to put it on the dead pulley, and that, while giving such pressure, and after the "look out" notice, his ladder thereby was caused to slip away from the pulley and so far upset that he jumped to the ffoor. As we read the record, there is no causal connection between the shoving over of the upper end of Brown's ladder and the accident to plaintiff. The inference to be drawn from Brown's version is that his pressure on the belt shoved his own ladder over, and that the notice he gave to plaintiff was timely and sufficient to put sumption of risk has been defined by a discriminating writer as: "A term or condition in a contract of employment, either express or implied from the circumstances of the employment, by which the employé agrees that dangers of injury ordinarily or obviously incident to the discharge of his duty in the particular employment shall be Bl. L. Dict. at his own risk.” him on his guard. In this condition of things defendant asked and received instruction No. 4. It told the jury to find for defendant, although the master was negligent, and although such negligence was the direct cause of the injuries, provided the jury found further that the master's negligence consisted “solely" in Brown's choice "of the method of place (sic) performing such work," and also The words "or obviously" connect themfound that both the master and plaintiff were, selves logically with the doctrine of "Volenti or, by the exercise of ordinary care, should non fit injuria," and are broad enough to have been, equally advised that such method cover the idea (among others) of known danwas not reasonably safe, and equally ad- gers voluntarily encountered. In this jurisvised of "all the risks and dangers (if any) diction it seems that, to settle liability for incident to the performance of such work ac- encountering dangers arising from the mascording to such method." That instruction ter's negligence that are so glaring and immiwas not the law of this case. It is wholly nent an ordinarily prudent person would not unsupported by the evidence. There was encounter them, reference is had to the docnone tending to show that the choice "of the trine of contributory negligence (sounding in method of place performing such work" tort), and not to the assumption of risk (whatever that may mean) was the only neg- (sounding in contract); for in this jurisdicligence of the master. The broad and action it has become settled doctrine that the cepted current of the proof on both sides is servant does not assume the risk of his masdirectly to the contrary. The negligence of ter's negligence. George v. Railroad, 225 Mo. the master, if any, was in the failure to give loc. cit. 408 et seq., 125 S. W. 196. The Misnotice at the crucial moment that the belt souri doctrine is that there is another term was going on. The method of performing express or implied, in the contract of employthe work called for that notice. The in- ment between master and servant, to wit, struction eliminates that idea, and, while it that the master will exercise ordinary care to is not clear precisely what it does mean, protect his servant by (among other ways) yet it is plain enough that it directs the providing him a reasonably safe place to jury's attention to a feigned or false issue work; and that when the assumption of risk and away from the place or issue where the on the part of the servant and the aforesaid shoe actually pinched. The quail uses that assumption on the part of the master are aldevice to protect its young brood when sur-lowed to proceed hand in hand, as they prised by an intruder. One Alcibiades used it. I remember to have read in an idle hour (i. e., before I came on this bench) that he had a very fine dog with a beautiful tail, costing (that is, the dog did) $1,000 or so. This dog was a favorite in Athens (say B. C. 420), and its tail (proudly carried) was much admired by the versatile and artistic citizens of that town. Having cut off his dog's tail, and being brought to book therefor (for all I know before the dicasts at the judgment seat), Alcibiades justified himself by saying he cut it off so that the Athenians would talk of that and say nothing worse of him. But the foregoing plan of obscuring the issue by putting forward something else to talk about is no working theory in the administration of justice. The precept is: The law is always more praised when it is consonant with reason. Plaintiff was gravely injured and, if his story be true, had a meritorious case. He was entitled to have the jury's mind focused on, not diverted from, the issues. Instruction No. 4 did not fill that office, for that its tendency was to litter up the mind of the jury with a feigned issue. If the premises announce sound doctrine, as we think they do, then the order granting a new trial stands safely on the theory that instruction No. 4 was erroneous. [4] (c) And this brings us to defendant's instruction No. 5 on assumption of risk. As169 S.W.-4 should in holding the scales of justice true, it results that the risks assumed by the servant are those which remain after the master has exercised ordinary care. Charlton V. Railroad, 200 Mo. loc. cit. 433, 98 S. W. 529; Curtis v. McNair, 173 Mo. 270, 73 S. W. 167. Assumption of risk and contributory negligence are two doctrines that so overlap and intermingle on certain phases that in some jurisdictions the obvious- or known-dangervoluntarily-encountered theory is put under the head of assumption of risk. A great jurist, Chief Justice Lemuel Shaw, first announced the doctrine of assumption of risk in this country in 1842 in the Supreme Court of Massachusetts in the celebrated case of Farwell v. Boston, etc., R. Co., 4 Metc. 49, 38 Am. Dec. 339; 2 Bailey, Pers. Inj. (2d Ed.) § 353; 1 White, Pers. Inj. p. 417, n. 3. In defining it he does not seem to include the element of known danger voluntarily encountered as Black does, but puts the matter in this guarded way: ations as well of justice as of policy, is that "The general rule, resulting from considerhe who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the to the performance of such services, and, in natural and ordinary risks and perils incident legal presumption, the compensation is adjusted accordingly." But philosophizing about the matter at this day is unprofitable. This court has a doc trine, as said, to wit, that the master cannot | men in the box understand, either taken in impliedly or expressly contract against his the aggregate or severally, by them? They own negligence, and hence the servant does not assume the risk of the master's negligence; and that doctrine must supply the test or touchstone for the instruction in hand. See cases supra and Hutchison v. Richmond Safety Gate Co., 247 Mo. 71, 152 S. W. 52; Chambers v. Chester, 172 Mo. 461, 72 S. W. 904. smack much of argument by overpressing the matter; and, in trying to assign a meaning to such all-embracing terms as "senses," "intelligence," "experience," might not the jury be led astray, and their native hue of common sense (the immediate jewel of an ordinary jury man's mind) become "sicklied o'er with the pale cast of thought," or lost in a fog? In instruction No. 5 the doctrine of assump- We fear so-nay, we think so. Those words tion of risk is put to the jury as an abstrac- do not form part and parcel of the mild, simtion of law. Broadly interpreted, it is likely ple, and colorless definition of due care the its form would pass muster as an abstrac-law delights in. The beaten way is the best tion, although, critically speaking, it puts the way and the safe way. plaintiff, to wit, that the order granting a new trial was within the discretionary power of the court relating to granting one when the verdict is against the weight of the evidence. In the face of another trial we prefer not to comment on that feature. It follows from what has been said that the judgment should be affirmed, and the cause remanded for the new trial granted below. Let it be so ordered. All concur. cart before the horse; it makes the injuries The conclusions reached make it unnecresult from the risk, instead of from the dan-essary to consider the question sprung by ger, ordinarily incident to the discharge of duty in the given employment. But that is by the by; for there is a deeper-going objection to it, to wit, it had no place in the case under the facts of the record. The case hinging on the giving of timely notice by the master to the servant, what have the dangers ordinarily incident to that form of employment or to the appliances they used to do with the case? Is a failure to give notice (the presiding fact in the case) an ordinary incident the risk of which the servant assumed? Would not the jury so interpret such rule falling from the lips of the judge and decisive of the whole case, as this one is? If so, then the servant assumes the risk of the master's negligence in a situation sprung suddenly and imperiously demanding the instant use of care and caution. Much of what is said in considering instruction No. 4 is applicable here. The natural result of that instruction was to confuse and mislead the jury; hence the order for a new trial may stand on the error of giving it. [5] (d) Speaking to defendant's instruction No. 7, we say this: Plaintiff in his own quoted instruction put to the jury the issue of his due care. In that view of it we need not seek for any real ground upon which to put the issue of contributory negligence to the jury as an affirmative defense, for by invoking the judgment of the jury on his due care he thereby invoked their judgment on his lack of it, and that, in turn, spells contributory negli gence. [6] But we do not approve the form of that instruction. We eye it askance as a daring and anxious novelty that disturbs more than it benefits. It would have been better to have said that plaintiff was required to use due care in doing his work and then gone on and defined, in the accepted language of the law, what due care was, instead of using the formidable words: "Was bound to use his senses and intelligence and experience." What does that sweeping and sounding aggregation of words mean, even to a lawyer or judge? They swell by contemplation and broaden by analysis. What did the plain COLLINSWORTH v. UNITED ZINC & 1. MASTER AND SERVANT (§ 258*)-INJURIES employ, was injured while planing a plank by Where plaintiff, a carpenter in defendant's the alleged depression of the back table of the planer, a petition alleging that defendant so negligently constructed and maintained the machine and the appliances supporting the back table that, while plaintiff was planing the plank, the back table suddenly and without warning, because of its negligent construction and mainlose control of the plank, and his right hand tenance, dropped down and caused plaintiff to to fall against the knives, constituted a sufficient allegation of negligence, and it was therefore not error for the court to deny defendant's motion to compel plaintiff to make his petition more definite and certain by showing in what way and manner defendant was negligent in the construction and maintenance of the machine, etc.; the details necessary to supply the information desired being obtainable only from defendant. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. 8 258.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |