Summary
In State ex rel. Kroger Grocery Baking Co. v. Haid, 323 Mo. 9, 14, 18 S.W.2d 478, 480 (1929), plaintiff and Ray, a fellow employee, were employed in a warehouse.
Summary of this case from Mathes v. TrumpOpinion
June 4, 1929.
1. CERTIORARI: To Court of Appeals: Purpose and Limitation. The determination of error on a writ of certiorari directed to a court of appeals is limited to the finding of conflict between its opinion and the latest ruling opinion of this court on the subject, either as to a general principle of law encountered, or as to a ruling under a like, analogous or similar state of facts, the purpose of the writ being to secure uniformity in opinions and harmony in the law.
2. NEGLIGENCE: Fellow-Servant: Warning. If the proximate cause of plaintiff's injury was the negligence of a fellow-servant, in moving a dangerous machine upon him without warning of the impending danger, plaintiff cannot recover damages from their common master.
3. ____: ____: ____: Non-Delegable Duty. If plaintiff and another were laborers, and the negligent act which resulted in plaintiff's injury arose through the doing of the labor the two were performing in common, they were fellow-servants, and if the dangerous situation was created by the fellow-servant and his negligent act was the proximate cause of plaintiff's injury, plaintiff cannot recover from their common master on the theory that the master's duty to warn plaintiff of the impending danger was a non-delegable one, there being no rule of the master or a custom developed in the course of the business to give warning of the movement of a machine where danger may impend, and no such surrounding conditions as require the master reasonably to anticipate any such negligent act.
4. ____: ____: ____: Federal Employers' Liability Act. The Federal Employers' Liability Act permits recovery for death or injury resulting in whole or in part from the negligence of any officer, agent or employee of an interstate carrier, and a case holding that under that act a plaintiff may recover damages for injuries resulting from the negligent act of a fellow-servant is not a precedent for a holding that plaintiff may recover from his master, under the state law, for injuries caused by the negligent act of a fellow-servant.
5. ____: ____: ____: Custom: Dangerous Place. A case holding that plaintiff was entitled to recover from the master for the negligent act of a fellow-servant, in failing to give warning of the movement of a machine, where there was a custom to warn, and the place was not reasonably safe, is not a precedent for a holding that plaintiff is entitled to recover from his master for injuries caused solely by the negligent act of a fellow-servant, where there was no such custom, and the place was not such as to require the master to anticipate the negligent act and provide for a warning.
Corpus Juris-Cyc. References: Courts, 15 C.J., Section 511, p. 1079, n. 42. Master and Servant, 39 C.J., Section 586, p. 470, n. 81; Section 644, p. 537, n. 12; Section 743, p. 633, n. 81, 85.
Certiorari to St. Louis Court of Appeals.
RECORD AND OPINION QUASHED.
Jones, Hocker, Sullivan Angert and Ralph T. Finley for relator.
(1) On certiorari to the Court of Appeals the Supreme Court will determine whether the opinion (a) runs counter to the decisions of the Supreme Court on the general principles of law announced, or (b) announces a ruling contrary to that of the Supreme Court under a like or similar state of facts, or where the facts are analogous. State ex rel. v. Reynolds, 287 Mo. 169; State ex rel. v. Reynolds, 289 Mo. 506; State ex rel. v. Allen, 294 Mo. 214; State ex rel. v. Trimble, 250 S.W. (Mo.) 384. The purpose of certiorari to the Court of Appeals is to secure harmony of opinions, and if the opinion of respondents is not in harmony with those of the Supreme Court it should be quashed. State ex rel. Vulgamotte v. Trimble, 300 Mo. 92. (2) Although admitting that the plaintiff and his co-worker Ray were fellow-servants, the Court of Appeals held that it was proper to submit the case on the theory that relator had violated its non-delegable duty to warn the plaintiff of impending danger. Since the master was not personally directing the work, and since the facts stated by the Court of Appeals show that the plaintiff must have known of the impending danger, the opinion contravenes the following decisions of the Supreme Court, which hold that absent pleadings and proof of youth and inexperience, the duty to warn exists only where the servant is ignorant of the impending danger and the master knows, or by the exercise of ordinary care should know, of such danger. Epperson v. Postal Telegraph-Cable Co., 155 Mo. 381; Nugent v. Milling Co., 131 Mo. 254; Smith v. Box Co., 193 Mo. 735; Brady v. Railroad, 206 Mo. 527; Junior v. Light Power Co., 127 Mo. 83; Kolbow v. Manufacturing Co., 3 S.W.2d 228. The opinion also contravenes the following decisions of the Supreme Court, which hold that the master is not required to keep a special watch over an employee to warn him of common dangers or those to which the performance of his ordinary duties may subject him, and that the master has a right to assume that fellow-servants will perform their work with reasonable safety to one another. Chrismer v. Telephone Co., 194 Mo. 212; Ring v. Ry. Co., 112 Mo. 230. (3) The opinion conflicts with those decisions of the Supreme Court which hold, on analogous facts, that a servant assumes obvious dangers ordinarily incident to the work in which he is engaged, including negligent acts of fellow-servants. Richardson v. Mesker, 171 Mo. 673; Hawk v. Lumber Co., 166 Mo. 126; Brady v. Railroad, 206 Mo. 527; Smith v. Box Co., 193 Mo. 725; Epperson v. Postal Telegraph-Cable Co., 155 Mo. 381; Dixon v. Construction Co., 298 S.W. 827. (4) The facts in the case show that the plaintiff was injured solely through the negligence of a fellow servant, and in failing to so hold the Court of Appeals contravened the following decisions of the Supreme Court applying the fellow-servant doctrine to a similar or analogous state of facts; McIntyre v. Tebbetts, 257 Mo. 117; Bender v. Grocery Baking Co., 310 Mo. 496; McCall v. Dry Goods Co., 236 S.W. 326; Wuellner v. Planing Mill Co., 303 Mo. 47; State ex rel. Duvall v. Ellison, 283 Mo. 541; Boston v. Grocery Banking Co., 7 S.W.2d 1006. (5) Since the sudden and negligent act of Ray, plaintiff's fellow servant, was the cause of the plaintiff's injury, and since there was no duty to warn, the opinion of the Court of Appeals necessarily ignores the rule of the Supreme Court as to proximate cause. State ex rel. Boeving v. Cox, 310 Mo. 375; Van Bibber v. Swift Co., 286 Mo. 317; State ex rel. Allen v. Trimble, 317 Mo. 751. (6) Since the facts showing the common employment of the plaintiff and his fellow-servant, and the manner of plaintiff's injury are undisputed, there is no jury question in this case, and the Court of Appeals should have held as a matter of law that the demurrer to the evidence should have been sustained. In failing to so hold it contravenes the following decisions of the Supreme Court: Marshall v. Schrickler, 63 Mo. 311; Bradley v. Tea Co., 213 Mo. 320; Wuellner v. Planing Mill Co., 303 Mo. 38; Radtke v. Basket Box Co., 229 Mo. 24.
Charles E. Morrow and Eugene J. McMahon for respondents.
The Court of Appeals in its decision ruled that the plaintiff had been ordered by the defendant into a place of danger in front of the hand truck where he could not see and observe the movements of the electric truck; that the defendant also ordered Ray to bring the electric truck up from behind the hand truck and push the hand truck forward and that it was the duty of the defendant to warn the plaintiff that the electric truck was about to come in contact with the hand truck, and this being a non-delegable duty of the master to warn the servant of impending danger, the defendant could not relieve itself from liability by shifting this duty to Ray. The relator has cited no decisions of this court on the same or a similar state of facts in which the rule announced by the Court of Appeals is in conflict. To the contrary, the rule announced by the Court of Appeals finds support in the decisions of this court. Koerner v. Car Co., 209 Mo. 141, 158; Young v. Lusk, 268 Mo. 625.
Certiorari to the St. Louis Court of Appeals to review its record and opinion, which is reported as Simmons v. Kroger Grocery Baking Company, 6 S.W.2d 1023. The action involves damages for personal injuries. Relator avers that the opinion of the Court of Appeals conflicts with the latest rulings of this court on the subject involved therein.
The facts summarized in the opinion of the Court of Appeals read:
"There is evidence tending to prove that on July 18, 1923, plaintiff was in the employ of defendant as a laborer, working in and about its warehouse, his particular duty being to unload freight, the method employed being to place hand trucks in the freight cars and when the hand trucks were loaded a number of laborers, usually from four to six, would push them across a runway leading from the freight cars to the platform of the warehouse. These loaded trucks were then pushed by an electric truck to various elevators in the warehouse so that the merchandise could be stored therein where wanted. It was necessary, in moving the trucks across the platforms to the elevators of the warehouse, that an employee walk in front of the loaded hand truck holding a handle or bar to steer or guide the truck. In guiding the hand truck the employee would walk facing in the direction in which the truck was to be guided, with his hands behind him holding onto the steering handle of the truck. On the occasion in question the foreman in charge of the working crew, of which plaintiff was one, ordered them to hurry up and get a particular freight car unloaded. As soon as a hand truck had been loaded with boxes containing canned milk (the truck and its load weighing approximately two thousand pounds) and had been pushed across the gangway from the freight car to the platform by workmen, the foreman directed an employee named Ray and plaintiff to take the loaded hand truck over to the elevator. Plaintiff was told to guide the truck. Ray's part in the work was to operate the electric truck which did the pushing.
"According to plaintiff's own testimony, upon receiving the order to guide the truck while Ray operated the electric truck to push the hand truck to the elevator, he walked rapidly from the freight car across the running board to the platform, to the right-hand corner of the loaded hand truck, for the purpose of taking hold of the handle or bar to guide the truck; that because of the manner in which the hand truck was loaded he could not look over the truck and see behind it, and that just as he took hold of the guiding bar, or was about to take hold of it, Ray, without any warning, brought the electric truck up against the loaded hand truck `with a crash — fast,' causing the right-hand wheel of the truck to move forward onto and upon plaintiff's foot, injuring the same.
"Plaintiff, in his cross-examination as to the reason why his foot got under the wheel of the truck, stated that the truck `came too quick; couldn't see it start.'
"Plaintiff's assignment of negligence predicated upon defendant's failure to warn was submitted to the jury and, in the light of plaintiff's testimony as above outlined, we think, properly so.
"Under plaintiff's testimony, in compliance with the orders of his foreman, he had to take hold of the handle or guiding bar, which required that he get in front of the loaded hand truck. And on this occasion, according to plaintiff, the truck was so loaded that when he was in front of the truck at the guiding bar he could not see the approach of the electric truck that was to push the hand truck."
I. On a writ of certiorari to an appellate court, the determination of error, under our decisions, is limited to the finding of a conflict between the Court of Appeals' opinion and the latest ruling opinion of this court on the subject, either as to a general principle of law announced, or as to a ruling under a like, analogous or similar state of facts. The purpose of certiorari is to secure uniformity in opinions and harmony in the law. [State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014.]
II. The Court of Appeals decided, on the facts related, that "the fact that Ray, who operated the electric truck, and plaintiff were fellow-servants will not bar plaintiff from his right to recover, since the duty of the master to warn a servant of impending danger is a non-delegable one." Relator cites a number of opinions of this court, with which it avers that the opinion of the St. Louis Court of Appeals is in conflict. We find it necessary to summarize the facts and ruling in one case only cited by relator.
In Richardson v. Mesker, 171 Mo. 666, 72 S.W. 506, two employees of the same master were repairing a machine on which they worked. The fellow-employee put the machine in motion without notifying plaintiff of his intention to do so, and without knowing or having reason to know that plaintiff's hand was on the cogwheel which crushed it. The two employees were held fellow-servants and it was said that, even if plaintiff was injured through the negligence of a fellow-servant in starting the machine without notice of his intention to do so, still plaintiff could not recover, because he was injured by the negligence of a fellow-servant.
According to the Court of Appeals' opinion, the assignment of negligence submitted to the jury was defendant's failure to warn plaintiff that his fellow-employee was about to start the electric truck to push the loaded hand truck. The facts develop that plaintiff and his fellow-laborer were ordered by the foreman to take the loaded hand truck to the elevator. Plaintiff was told to guide the loaded truck, and Ray, the fellow-laborer, to operate the electric truck to push the loaded truck. As plaintiff took hold or was about to take hold of the guiding bar of the loaded truck, Ray, without warning, brought the electric truck against the hand truck, `with a crash — fast,' causing the wheel of the hand truck to roll on plaintiff's foot, injuring it. It is evident, therefore, from the facts that plaintiff was injured by the negligence of a fellow-servant, in that the fellow-servant failed to warn plaintiff of the intended movement of the electric truck. The Court of Appeals' opinion holds that this was a non-delegable duty of the master. We do not think so. The opinion, on the facts stated, would destroy the fellow-servant rule, which is firmly established in the law of this State. The proximate cause of plaintiff's injury was the operation of the electric truck by Ray, without warning plaintiff, the act of a fellow-servant. The master cannot be expected to be present to guard an employee against each act of a fellow-servant, even though it be a negligent one. [Chrismer v. Bell Telephone Co., 194 Mo. 189, 92 S.W. 378; Ring v. Railroad, 112 Mo. 220, 20 S.W. 436.] There is no question but that plaintiff and Ray were laborers and, as the negligent act arose merely through the doing of the labor the two were performing in common, the proximate cause of the injury was the negligent act of the fellow-servant. [State ex rel. Duvall v. Ellison, 283 Mo. 532, 223 S.W. 651.]
The facts as developed do not disclose a duty upon the part of defendant, either through itself or Ray, to warn plaintiff of the intended movement of the electric truck. However, we have held that a rule of the master, or a custom developed in the course of business, to warn with respect to movement of a vehicle or implement, where danger may impend, does cast such duty upon a master and consequently liability. [Johnson v. Brick Coal Co., 276 Mo. 42, 205 S.W. 615; Gettys v. American Car Foundry Co., 322 Mo. 787.] Moreover, where the petition covers the situation, liability may be predicated on the failure of the master to formulate rules as to a warning, or other conduct of the business, provided that the surrounding conditions are such as to require the master reasonably to anticipate the occurrence and the conditions demand or advise a rule for the safety of employees.
We think the Court of Appeals' opinion is in direct conflict with Richardson v. Mesker, 171 Mo. 666, 72 S.W. 506, both on general principles of law and on analogous facts. Here as there, two employees of the same master were engaged in a common work or labor. In both cases the fellow-servant negligently started the machine in motion without a warning to his fellow-employee. As it was held in that case that their employer could not be held to answer for an injury to one of them, caused by the negligence of his fellow-servant, so the same result must follow here. This court has lately followed the ruling that an employee of the same master cannot recover for an injury caused by the negligence of a fellow-servant. [Boston v. Kroger Grocery Baking Co., 7 S.W.2d 1006.]
III. Plaintiff cites in support of his position two cases only, to-wit: Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S.W. 481, and Young v. Lusk, 268 Mo. 625, 187 S.W. 849.
The case of Young v. Lusk, supra, cannot act as a precedent for plaintiff, for it is based on the Federal Employers' Liability Act, which permits recovery for death or injury resulting in whole or in part from the negligence of any of the officers, agents or employees of an interstate carrier as such.
Neither may the case of Koerner v. St. Louis Car Co., supra, on the facts herein related, be considered a precedent in plaintiff's behalf. The facts in that case show that the plaintiff, standing on a scaffold, had been at work for some time painting a stationary car. While so working, a crew of the defendant, by means of a dummy engine, moved the car which plaintiff was painting, without warning to him, thereby breaking the scaffold and throwing the plaintiff to the ground and injuring him. The evidence established a custom to warn employees working on such cars before moving them. The petition was based on the failure of defendant to provide and maintain a reasonably safe place for his servant to work. Consequently, it is evident that the Koerner case develops a trial theory and supporting facts that distinguish it from the case under consideration, so as to render it irrelevant and impertinent as a precedent for plaintiff herein.
It follows from what we have said that the record and opinion of the St. Louis Court of Appeals is quashed and held for naught. Henwood and Cooley, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.