Opinion
January 4, 1941.
1. APPEAL AND ERROR: Directed Verdict. On appeal from a verdict and judgment for plaintiff, where appellants contend that the trial court should have directed a verdict for defendant, the question must be determined on plaintiff's theory of the facts.
2. MASTER AND SERVANT: Negligence. In an action for injuries to plaintiff caused when he and three others were carrying a rod weighing 455 pounds, if the employee, who with plaintiff was carrying one end of the rod, dropped it in the furtherance of the work of the employer's business it was negligence within the meaning of the Federal Employers' Liability Act.
But if he deliberately and intentionally dropped the rod, not in furtherance of the work, the act was not negligence within the meaning of the Federal Employers' Liability Act.
3. MASTER AND SERVANT: Act of Fellow Servant. Where plaintiff and three other fellow employees were conveying a rod and the employee, carrying one end with plaintiff, dropped the rod without warning to plaintiff and the evidence conclusively shows that the act was malicious and not in furtherance of the master's business, plaintiff could not recover for injuries received by the act, under the Federal Employers' Liability Act.
Appeal from Henry Circuit Court. — Hon. Charles A. Calvird, Judge.
REVERSED.
E.G. Nahler, Charles E. Hassett and Mann Mann for appellants.
(1) Plaintiff's testimony that "Murphy dropped it," and that is all that appears in the record as to Murphy's conduct, is insufficient to warrant the jury in finding that Murphy was guilty of negligence in dropping it. Neth v. Delano, 184 Mo. App. 654, 171 S.W. 1; Hawley v. Lusk, 184 S.W. 1174; Davidson v. St. L.-S.F. Ry. Co., 229 S.W. 786; Davidson v. St. L.-S.F. Ry. Co., 301 Mo. 79, 256 75 S.W. 169. (a) Until destroyed by evidence of probative value the presumption is that Murphy exercised ordinary care and was not negligent. Haggard v. McGrew C. Co., 200 S.W. 1074; Hartwell v. Parks, 240 Mo. 537; Whitesides v. C., B. Q. Ry. Co., 186 Mo. App. 620; Yarnell v. Kansas City, F.S. M. Ry. Co., 113 Mo. App. 579. (b) Where the injury may have resulted from one of two or more causes, for one of which, but not the other, defendant would be liable, plaintiff must show, with reasonable certainty, that the cause for which defendant is liable produced the result; that showing was not made in this case. Luettecke v. St. Louis, 140 S.W.2d 51; Warner v. St. Louis M. Ry. Co., 178 Mo. 134; State ex rel. Trading Post Co. v. Shain, 342 Mo. 593, 116 S.W.2d 102; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 317; Hayes v. Kresge Co., 100 S.W.2d 329; Cain v. Talge Lounge Co., 222 Mo. 508. (c) Plaintiff assumed the risk as a matter of law. Arnold v. Scandrett, 131 S.W.2d 542; Jones v. St. L.-S.F. Ry. Co., 325 Mo. 1153, 30 S.W.2d 483; York v. St. L.-S.F. Ry. Co., 333 Mo. 105, 62 S.W.2d 475; McCormick v. Hutchison E. Co., 326 Mo. 380, 31 S.W.2d 971; Hunter v. Busy Bee Candy Co., 307 Mo. 668, 271 S.W. 803; O'Dell v. St. L.-S.F. Ry. Co., 281 S.W. 456; Frederick v. Erie Co., 36 F.2d 718; Chesapeake O. Railroad Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 157; Toledo, St. L. W. Railroad Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; Southern P. Railroad Co. v. Bershire, 254 U.S. 415, 65 L.Ed. 335; McAdoo v. Auzellott, 271 F. 268. (2) Where two or more acts of negligence are submitted in the disjunctive, the evidence must be sufficient to support both. If it fails to support either, the instruction is fatally erroneous. Kuhn v. St. L.-S.F. Ry. Co., 281 Mo. 342; Whitehead v. Fagelman, 44 S.W.2d 61; Morris v. Waggoner E. Co., 243 S.W. 426; Bonarrens v. Lead Belt Ry. Co., 309 Mo. 65, 273 S.W. 1047.
Sylvan Bruner, Vance Julian and Sizer Myers for respondent.
Because a prima facie case of negligence was made. The record discloses that Murphy's conduct in "deliberately" dropping the rod was ample and sufficient to warrant the jury in finding that Murphy was guilty of negligence. No other conclusion could have been reached by the jury, since the testimony of all of the defendants' witnesses shows that the rod did not slip from Murphy's hand, nor did Murphy stumble, nor was the dropping of it caused by any stumble or slip of any of Murphy's coemployees. Karagas v. Union Pac. Ry. Co., 232 S.W. 1100; Wheeler v. Mo. Pac. Ry. Co., 322 Mo. 271, 18 S.W.2d 494, 74 L.Ed. 621; Jones v. St. L.-S.F. Ry. Co., 333 Mo. 802, 63 S.W.2d 94; Walls v. Thompson, 119 S.W.2d 43; Martin v. Union Pac. Ry. Co., 253 S.W. 513; Neth v. Delano, 184 Mo. App. 654, 171 S.W. 1; Hawley v. Lusk, 184 S.W. 1173; Davidson v. St. L.-S.F. Ry. Co., 229 S.W. 786; Id., 301 Mo. 79, 256 S.W. 169. Because the defendants filed a general demurrer at the close of the whole case, which the court overruled. No withdrawal instructions were offered by the defendants; hence, if plaintiff made a case under any of the alleged specifications of negligence, the demurrer was properly overruled. Torrance v. Pryor, 210 S.W. 430; State ex rel. Miss. River B.T. Railroad Co. v. Allen, 308 Mo. 487, 272 S.W. 925; Ray v. Marquette Cement Mfg. Co., 273 S.W. 1078; Motz v. Watson, 284 S.W. 837; Seewald v. Gentry, 220 Mo. App. 367, 286 S.W. 445; Kirkpatrick v. Amer. Creosoting Co., 225 Mo. App. 774, 37 S.W.2d 996; Curtis v. Kansas City Pub. Serv. Co., 74 S.W.2d 255; Lehay v. Winkel, 251 S.W. 483; Mills v. Steadley Co., 279 S.W. 160; Packer v. C., M. St. P. Ry. Co., 265 S.W. 119. Because the presumption that Murphy was exercising ordinary care was destroyed by positive evidence that Murphy "deliberately" dropped the rod. Because the evidence shows with absolute certainty that the plaintiff's injuries were caused by Murphy "deliberately" dropping the rod, and without giving any warning. Because there was ample evidence to warrant the jury's finding that Murphy was negligent in failing to warn the plaintiff that he was going to "deliberately" drop the rod. Johnson v. Waverly Brick Coal Co., 276 Mo. 42, 205 S.W. 615; Young v. Lusk, 268 Mo. 625, 187 S.W. 849; Gettys v. Amer. Car Foundry Co., 322 Mo. 787, 16 S.W.2d 85; Phillips Petroleum Co. v. Jenkins, 82 S.W.2d 264; Headdy v. Wright Tie Co., 262 S.W. 447. Because the plaintiff did not assume the risk as a matter of law. Under the Federal Employers' Liability Act, the doctrine of assumption of risk certainly has no application when Murphy "deliberately" dropped the rod, the dropping of which the plaintiff could not have foreseen or expected. Walls v. Thompson, 119 S.W.2d 43; Chicago, R.I. P. Railroad Co. v. Ward, 252 U.S. 18, 40 Sup. Ct. 275, 64 L.Ed. 430; Jones v. St. L.-S.F. Ry. Co., 333 Mo. 802, 63 S.W.2d 94; Sumner v. Ann Arbor Ry. Co., 209 N.W. 184; Chapman v. U.S. Express Co., 159 N.W. 308; Chesapeake O. Railway Co. v. Proffitt, 241 U.S. 462, 69 L.Ed. 1102; Webb v. C. O. Ry. Co., 144 S.E. 100; State ex rel. St. L.-S.F. Ry. Co. v. Cox, 329 Mo. 292, 46 S.W.2d 849; McIntyre v. St. L.-S.F. Ry. Co., 286 Mo. 234, 227 S.W. 1047; Bird v. St. L.-S.F. Ry. Co., 336 Mo. 316, 78 S.W.2d 389; Jones v. St. L.-S.F. Ry. Co., 333 Mo. 802, 63 S.W.2d 94.
Action under the Federal Employers' Liability Act. Plaintiff and three fellow employees (Murphy, Mahan and Shirley) were lifting a steel rod (weighing 455 pounds) from the floor of the roundhouse to a wagon for movement to the machine shop. Plaintiff and Murphy lifted one end of the rod. Shirley and Mahan lifted the other end of the rod. Plaintiff testified that when the rod had been lifted "crotch high" Murphy suddenly dropped (released his hold) the rod, thereby causing additional weight on plaintiff which twisted his body and injured him. He also testified that he was looking at Murphy at the time and that Murphy "just deliberately turned it loose."
The three fellow employees and Garrison, the foreman who was present, testified that no such thing occurred; that when the rod had been lifted twelve inches from the floor, plaintiff released his hold on the rod, stating that he "had a twitch in his back." They also testified that Murphy, Mahan and Shirley continued lifting and placed the rod on the wagon.
On cross-examination by plaintiff there was testimony as follows: "Murphy testified that he didn't turn loose of the rod with either hand, nor did he stumble nor did the rod slip from his hand in any manner whatsoever. Mahan testified that there was no slip or stumble by either of the men who had hold of the rod. Shirley testified that neither Murphy's hands, nor Mahan's hands, or his hands slipped from the rod, and that none of the men's feet slipped or stumbled in any way."
The negligence relied upon by plaintiff follows:
"In that the defendants' agent and employee Murphy, who was assisting the plaintiff in lifting one end of the connecting side rod, negligently and carelessly, and without notice or warning, released his hold on said rod, which they were loading, and caused the entire weight of the connection side rod to be put upon the plaintiff.
"In that defendants, their agents, servants, and employees, and in particular one Murphy, engaged with plaintiff in lifting the heavy said connection side rod, failed to abide by the well-known and long-established custom, and failed to warn plaintiff that he was going to turn loose of his side of the heavy rod."
The jury believed, or pretended to believe, the testimony of plaintiff, and, under the court's instructions, returned a verdict for $10,000. Judgment accordingly and defendants appealed.
Defendants contend for a directed verdict at the close of all the evidence. The question is here for review. Of course, this question must be determined on plaintiff's theory of the facts.
We agree with the plaintiff that in ruling the question we should consider the testimony of Murphy, Mahan and Shirley, above set forth, with the testimony of the plaintiff that he was looking at Murphy at the time, and that Murphy "just deliberately turned it loose."
We also agree with the plaintiff that said testimony of Murphy, Mahan and Shirley, considered with the testimony of plaintiff that Murphy "just deliberately turned it loose," shows that Murphy deliberately and intentionally dropped the rod.
If Murphy deliberately and intentionally dropped the rod in the course of his employment and in furtherance of the work of the employer's business, his conduct in doing so was negligence within the meaning of the Federal Employers' Liability Act. The rule is stated as follows:
"`Negligence' is a word of broad significance and may not readily be defined with accuracy. Courts usually refrain from attempt comprehensively to state its meaning. While liability arises when one suffers injury as the result of any breach of duty owed him by another chargeable with knowledge of the probable result of his conduct, actionable negligence is often deemed — and we need not pause to consider whether rightly — to include other elements. Some courts call willful misconduct evincing intention or willingness to cause injury to another gross negligence. [Bolin v. Chicago, St. P., M. O. Railway Co., 108 Wis. 333, and cases cited. And see Peoria Bridge Association v. Loomis, 20 Ill. 235, 251, C., R.I. P. Ry. Co. v. Hamler, 215 Ill. 525, and cases cited. Mercer v. Corbin, 117 Ind. 450.] And it has been held that the use of excessive force causing injury to an employee by the superintendent of a factory in order to induce her to remain at work was not a trespass as distinguished from a careless or negligent act. [Richard v. Amoskeag Mfg. Co., 79 N.H. 380, 381.] While the assault of which plaintiff complains was in excess of authority conferred by the employer upon the foreman, it was committed in the course of the discharge of his duties and in furtherance of the work of the employer's business. As unquestionably the employer would be liable if plaintiff's injuries had been caused by mere inadvertence or carelessness on the part of the offending foreman, it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the act. [Johnson v. Southern Pacific Co., supra; Schlemmer v. Buffalo, R. P. Ry., 205 U.S. 1, 9, 10.]" [Jamison v. Encarnacion, 281 U.S. 635, l.c. 641.]
However, if the act of Murphy in deliberately and intentionally dropping the rod was not "in furtherance of the work of the employer's business," the said act was not negligence within the meaning of the Federal Employers' Liability Act. The rule follows:
"The ground on which the Railroad Company was held was that it had negligently employed a dangerous man with notice of his characteristics, and that the killing occurred in the course of the engineer's employment. But neither allegations nor proof present the killing as done to further the master's business, or as anything but a wanton and willful act done to satisfy the temper or spite of the engineer. Whatever may be the law of Mississippi, a railroad company is not liable for such an act under the statutes of the United States. The only sense in which the engineer was acting in the course of his employment was that he had received an order from Green which it was his duty to obey — in other words that he did a willful act wholly outside the scope of his employment while his employment was going on." [Davis v. Green, 260 U.S. 349, l.c. 351, 352; C. O. Ry. Co. v. Bryant, 280 U.S. 404; Dirks v. United Fruit Co., 48 F.2d 656.]
Of course, Murphy was in the line of his duty and in furtherance of the master's business while lifting the rod. Even so, it would not be contended that the act of "dropping the rod" furthered the lifting of the rod. This is not a case in which the servant's personal motive mingled with a furtherance of the master's business. Furthermore, the act of Murphy in "dropping the rod" without warning to plaintiff, as required by custom of said railroad yards, conclusively shows that his conduct was malicious. On plaintiff's theory of the facts, it must be ruled that Murphy intentionally, deliberately and maliciously assaulted the plaintiff by "dropping the rod," thereby seriously injuring him. Furthermore, it must be ruled that said act was not in furtherance of the master's business.
Plaintiff cites Karagas v. Railroad Co., 232 S.W. 1100; Wheeler v. Railroad Co., 322 Mo. 271, 18 S.W.2d 494; Baker v. Railroad Co., 327 Mo. 986, 39 S.W.2d 535; Bolin v. Railroad Co., 84 N.W. 446; Baltimore P. Railway Co. v. Jones, 95 U.S. 439, 441; Delaware L. W. Railroad Co. v. Koske, 279 U.S. 7; Montgomery v. Railroad Co., 181 Mo. 477, 79 S.W. 930.
In the Karagas case, l.c. 1101, the plaintiff and three fellow servants, with the assistance of the foreman, removed a handcar northward from the track. There was evidence tending to show that on the removal of the car four or five feet from the track, the foreman released his hold and stepped from the north side of the car that it might be moved farther from the track. At about this time a fellow servant of the plaintiff released his hold on the car, which threw additional weight on the plaintiff and injured him. From this evidence the jury could find that the fellow servant negligently released his hold, thinking the car was to be left only four or five feet from the track. We so understood the facts and cited the Karagas case in the Wheeler case. In the last mentioned case there was evidence tending to show that three fellow servants were moving a large wheel. One of the servants released his hold and moved toward the front of the wheel. It fell and injured the plaintiff. From this evidence the jury could find that the fellow servant negligently released his hold, intending to assist by taking hold of the front of the wheel. The Karagas and Wheeler cases are distinguishable on the facts.
In the Baker case the plaintiff and others were loading ties into a car. There was evidence tending to show that the foreman was dissatisfied with the manner in which the plaintiff was performing his work and pushed him from the car. This conduct of the foreman was in furtherance of the master's business and was negligence within the meaning of the Federal Employers' Liability Act, as ruled in Jamison v. Encarnacion, supra.
The other cases cited do not rule the question presented in this case.
The judgment should be reversed. It is so ordered. All concur.