Opinion
April 11, 1928.
1. NEGLIGENCE: Fellow-Servant: Unsafe Place: Direct or Incidental Relation to Work. Where injury to one servant was caused by the negligent act of another, the test to be applied in determining whether the master is liable for negligence in furnishing the injured servant an unsafe place is: Did the negligent act have a direct relation to the place of work? or was it merely incidental to the work itself?
2. ____: ____: Negligent Use of Physical Part of Place. If the instrument negligently used by a servant is a constituent element and a physical part of the place in which the master's employees are required to work, the negligent act of the servant is the negligence of the master.
3. ____: ____: ____: Raising and Lowering Warehouse Door. Plaintiff was engaged, with others, in trucking tin plates from a platform, through a doorway, into a large tin-room. The doorway was large, and the door heavy, and was raised and lowered by means of chains and pulleys. Ordinarily the door remained opened, but on the particular morning the weather was cold, and the superintendent of the plant told the foreman in charge of the men hauling the tin that the girls upstairs (other employees) were complaining of the cold, and directed him to put a man at the door to open it when a truck approached and to close it as soon as the truck had passed through, and accordingly the foreman placed a fellow-servant of plaintiff at the door to open it when a truck was ready to pass through, and to close it when a truck had passed through the doorway. Two men worked at each truck, and plaintiff and a fellow-worker, having unloaded a truck, pulled it back as far as the door. Plaintiff then turned the empty truck over to his fellow-worker, who went on through the door, but plaintiff stepped over to a water tank on the inside of the room, near the door. Just before starting to the tank he looked at the man in charge of the door, who was on the opposite side of the door and on the inside of the room, to see if the man was observing him. The man was looking directly at him, and plaintiff then went to the tank and took a drink of water, which occupied but a few seconds. He then, without looking again at the man in charge of the door, started out through the door, and as he was in the act of passing under the door the servant in charge of it lowered it, and it struck him on the head, causing the injuries for which he sues. Held, that the act of raising and lowering the door was an act related primarily to the place of work, and not merely an incident of the operation of moving the tin from the platform to the tin-room, and the case should be submitted on the theory of the master's negligence in furnishing an unsafe place, and not on the theory that the injury must be attributed to the negligence of a fellow-servant.
4. ____: ____: Vice-Principal: Duty of Master. If the opening and closing of the door to a warehouse through which employees are set to moving trucks is an attribute of the place of work, the duty of exercising ordinary care in the performance of acts connected therewith is personal to the master; and consequently, an employee placed in charge of the door, to open it when the trucks approach and to lower it when they have passed through the doorway, becomes with respect to that task a vice-principal, although a fellow-servant of the injured mover of the truck as to all other tasks, and if negligent in handling the door and his negligence caused the injuries, the master is liable.
Corpus Juris-Cyc. References: Master and Servant, 39 C.J., Section 468, p. 349, n. 48; Section 717, p. 602, n. 79.
Appeal from Jackson Circuit Court. — Hon. E.C. Meservey, Special Judge.
REVERSED AND REMANDED.
L.N. Musser and Mosman, Rogers Buzard for appellant.
(1) The court erred in sustaining defendant's demurrer to plaintiff's evidence, for the reason that the plaintiff made a case for the jury by showing that plaintiff was injured by reason of the negligent act of the servant to whom defendant had delegated a duty, for the violation of which defendant cannot escape liability. The negligent act of Puckett affected the security of the place wherein plaintiff was required to work, and for his negligence defendant is liable. Bender v. Kroeger Gro. Co., 310 Mo. 488, 294 S.W. (Mo. App.) 732; Carter v. Wolff, 296 S.W. 187; Koerner v. St. Louis Car Co., 209 Mo. 158; Goodin v. Fire Brick Co., 249 S.W. 738; McNulty v. Atlas Portland Cement Co., 249 S.W. 734; Adair v. Terminal Ry. Co., 282 Mo. 133; Mitchell v. Polar Wave Ice Fuel Co., 206 Mo. App. 271; White v. Montgomery Ward Co., 191 Mo. App. 268; Zellars v. Water Light Co., 92 Mo. App. 123; Bright v. Fire Brick Co., 201 S.W. 641. (2) Under the evidence the court should not declare as a matter of law that Puckett and plaintiff were fellow-servants so as to relieve the defendant of liability. McCall v. Nugent Bros., 236 S.W. 324; McMurray v. Ry. Co., 225 Mo. 272; Kautz v. Ref. Car Co., 203 Mo. App. 522; Gayle v. Car Foundry Co., 177 Mo. 427.
Morrison, Nugent, Wylder Berger for respondent.
(1) The court did not err in sustaining defendant's demurrer at the close of the plaintiff's case, for the reasons (a) that a reasonably safe place was furnished by the defendant for the work in which Johnson and the other men in his department were engaged; (b) plaintiff and Puckett were engaged in a common enterprise and became and were fellow-servants; (c) the act of Puckett at the time and place complained of was a mere manual act in connection with the common purpose and common enterprise in which Johnson, Puckett and others were engaged; (d) the work done by plaintiff, Puckett, and the other men in that department was so related that all had an equal opportunity to observe and influence each other's conduct and to report any delinquency to a common foreman. Ryan v. McCulley, 123 Mo. 636; Motley v. Fire Brick Co., 187 Mo. App. 703; Rogers v. Schiele, 148 Mo. 53; English v. Rand Shoe Co., 145 Mo. App. 439; Jones v. Liggett Myers Tobacco Co., 284 S.W. 513; Shaw v. Construction Co., 102 Mo. App. 666; Hawk v. Lumber Co., 166 Mo. 121; Schmeizer v. Furniture Co., 134 Mo. App. 493; Burge v. Car Foundry Co., 274 S.W. 842; McIntyre v. Tebbetts, 257 Mo. 117; Rowe v. United Rys. Co., 211 Mo. App. 526; Kinser v. Paint Varnish Co., 249 S.W. 447; Ryan v. Lea, 249 S.W. 685; Ryan v. Christian Board of Publication, 199 S.W. 1031. (2) There being no dispute as to the facts in this case, it became and was the duty of the court to declare that Johnson and Puckett became and were fellow-servants. Consequently, this issue should not have been submitted to the jury. Marshall v. Sehricker, 63 Mo. 311; Bradley v. Tea Co., 213 Mo. 320; Rowe v. United Rys. Co., 211 Mo. App. 526; McIntyre v. Tebbetts, 257 Mo. 117; Hawk v. Lumber Co., 166 Mo. 121; Ryan v. Christian Board of Publication, 199 S.W. 1031; Shaw v. Bambrick-Bates Const. Co., 102 Mo. App. 666.
This is a suit by an employee against his employer to recover $40,000 for personal injuries sustained by the former in the course of his employment through the alleged negligence of the latter. At the close of plaintiff's case in chief, the trial court sustained defendant's demurrer to the evidence. Thereupon plaintiff took an involuntary nonsuit with leave. A motion to set aside the nonsuit was filed in due course, and overruled. This appeal on the part of plaintiff followed.
The facts are simple. Respondent operated a manufacturing plant at North Kansas City. Appellant was employed in the tinplate department. His duties were to truck tin plates from the railroad cars in which they arrived at the plant into a room of respondent's building called the tin-room. Appellant and other employees of respondent were so engaged on the morning of December 13, 1922. Loaded cars were stationed alongside a concrete loading platform which came up to the level of the floors of the cars. The tin was loaded on trucks which were then pulled across the platform, through a doorway and into the tin-room, where it was unloaded and piled. The doorway just referred to was an opening five or six feet wide and seven or seven and one-half feet high. The door itself was quite heavy; it was raised and lowered by means of chains and pulleys. Ordinarily the door remained open; but on the day just mentioned the superintendent of the plant told the foreman in charge of the men unloading the tin that the "girls upstairs," other employees, were complaining of the cold, and for that reason he must put a man at the door to open it when the men with a truck of tin approached and then close it as soon as they had passed through. The foreman accordingly placed an employee named Puckett at the door to open and close it as the ingress and egress of the men required. Prior to such assignment Puckett himself had been engaged in unloading the tin.
The men employed in removing the tin from the cars into the building worked in pairs, two with each truck. Appellant and a fellow-employee named Bronson were working together. On the occasion when appellant was injured he and Bronson had just unloaded in the tin-room a truck load of tin. Together they pulled the empty truck, on the way back to the car, as far as the door. Appellant then turned the truck over to Bronson, who went on through the door, and stepped over to a water tank on the inside of the room, near the door. Just before starting to the tank appellant looked at Puckett, who was on the opposite side of the door and on the inside of the room, to see if Puckett was observing him; Puckett was looking directly at him. Appellant then went to the tank and took a drink of water, which occupied but a few seconds. He then, without again looking at Puckett, started out through the door; as he was in the act of passing under the door Puckett lowered it, striking appellant on the head, knocking him to his knees and severely injuring him.
The question presented for determination on this appeal is whether the injury complained of was caused by a negligent failure of the employer to furnish its employee with a reasonably safe place in which to work, or whether such injury must be attributed to the negligence of a fellow-servant. Appellant invokes the familiar doctrine that the duty of the master to exercise ordinary care to furnish his servant with a reasonably safe place in which to work is a personal and continuing one. Respondent makes rejoinder and says that the place it furnished was safe, that there was no defect in either the door or the appliance for opening and closing it, and that having furnished such a door and put a competent servant in charge of it, it acquitted itself of all further responsibility. It is often difficult to determine in a given case whether the duty to furnish a safe place, although it is a continuing one, has been breached. It has been said that any negligence which results in injury to some one makes a particular spot or place dangerous or unsafe. But such a view followed to its logical sequence would result in entirely wiping out the fellow-servant doctrine. In cases like the one under consideration, where injury to one servant is caused by the negligent act of another, the test sometimes applied in determining whether the master is liable, and one which we regard as sound in principle, is this: Did the negligent act have a direct relation to the place of work? or was it merely incidental to the work itself — an "operative detail?" [Miller v. Centralia Pulp Co., 134 Wis. 316; Daves v. Southern Pacific Co., 98 Cal. 19; 18 R.C.L. 735, sec. 209.] In applying in the instant case the test just referred to, the question resolves itself into whether the act of raising and lowering the door was one related primarily to the place of work, or whether it was merely an incident of the operation of moving the tin from the cars into the building. It can of course be said that, inasmuch as it was necessary for the door to be kept closed when not in use, Puckett's acts in opening and closing it relieved the men who were trucking the tin from using a portion of their time in so doing, and thereby furthered the work in which they were engaged. But even when so viewed, we are not persuaded that the opening and closing door was not first and primarily a constituent element of the environment in which the men were required to work. The door itself was a physical part of "the place in which to work." The sole purpose of opening and closing it was to make the place safe and suitable for the different operations being carried on in it. If the door had been equipped with an automatic device which would have opened or closed it upon the pushing of an electric button, such device would unquestionably have been regarded as a constituent of the place of work. The fact that an animate instead of an inanimate instrumentality was used for that purpose, does not, we think, warrant a different conclusion.
It is equally clear that the opening and closing of the door was neither a part of the work of moving the tin nor incident to that work. Ordinarily the door was left open, and closing it tended to obstruct that operation. At the particular time of the occurrence which caused appellant's injuries, respondent was keeping the door closed when not in actual use for the purpose of protecting employees in the upper part of the building from the drafts of cold air which were coming through it when open. In other words, the keeping of the door closed was the measure taken to make the place a safe place in which to work for the girl employees upstairs. It was evidently respondent's purpose to furnish these latter employees the greatest amount of protection consistent with the unimpeded work of moving the tin.
If the opening and closing of the door was, as we hold, an attribute of the place of work, the duty of exercising ordinary care in the performance of the acts connected therewith was personal to the master. Consequently Puckett, when placed in charge of the door, to open and close it, became with respect to that task a vice-principal, although a fellow-servant as to all others. "A person employed to perform any of the master's duties toward his servant is, while that relation continues and in respect to such duties, no fellow-servant of the latter." [Dayharsh v. Railroad, 103 Mo. 570, 575, 15 S.W. 554; see also Koerner v. St. Louis Car Co., 209 Mo. 141, 157, et seq., 107 S.W. 481; Bender v. Grocery Baking Co., 310 Mo. 488, 276 S.W. 405.]
It follows that, if Puckett was negligent with respect to the handling of the door and that such negligence caused plaintiff's injuries, all of which the evidence tends to show, the respondent is liable.
In view of the conclusions reached, the action of the trial court should be reversed and the cause remanded with directions to that court to set aside the involuntary nonsuit and award plaintiff a new trial. It is so ordered. All concur.