text:
    COMBS v. ROUNTREE CONSTRUCTION COMPANY, Appellant.
    Division Two,
    July 1, 1907.
    1. MASTER AND SERVANT: Safe Place. The duty of the master to exercise reasonable care to provide a reasonably safe place in which his servant is required to work, is a primary duty; one. that he cannot delegate to any servant so as to escape liability for a negligent exercise thereof.
    2. -: -: Fellow-Servant. Where defendant by its foreman undertook to furnish plaintiff carpenter a reasonably safe step to stand on while he nailed a brace to protect a wall from the wind storm, plaintiff had a right to act upon the assumption that it had been safely done, in the absence of-knowledge to the contrary; and if that step was prepared by two carpenters under the immediate direction and eye of defendant’s foreman, and was negligently done, the negligent act was that of defendant and not that of fellow-servants (the carpenters) of plaintiff.

      3. -: -: Materials: Entrusted to Servants. Where the defendant through its foreman selected the timber for a brace for a wall against a threatened wind storm, and the material out of which cleats were to be nailed to the brace for plaintiff to stand on while he nailed the brace to the wall, and the foreman conceived and planned the brace, and commanded other carpenters to nail on the cleats and stood by while they did so, and ordered plaintiff, who was not working with the carpenters who nailed on the cleats, to co-operate in the work of fastening the top-end of the brace to the wall when it was hoisted to its place, the principle that where a master supplies his servants suitable material and appliances to work with and entrusts to them the selection of the material and the manner of using it, then for the negligence of the servant in selecting the material or in the construction of the appliance the master is not liable, does not apply. For, in such case, the foreman, who was defendant’s vice-principal, did npt leave to the discretion of the carpenters or plaintiff either the selection of the material or the manner of doing the work.

      41. -:-: Fellow-Servant: Assumption of Risk. The mere fact that two carpenters, under the direction and supervision of defendant’s foreman, nailed the cleats to the brace, which gave way when plaintiff stepped upon them, will not relieve defendant of liability for the defective appliance, the preparation of which was in no manner entrusted to or assumed by them.
    5. -: -: Duty of Foreman. The whole appliance having been planned and prepared under the immediate supervision of defendant’s foreman it was his duty to- have seen that the appliance was reasonably safe and secure for plaintiff to work upon before ordering him to use it.
    6. -: ——: Evidence: Experts: Sufficiency of Nails. The number of nails necessary to render safe cleats upon which plaintiff was required to stand while fastening a very high brace-timber to a wall, is not a matter of such common knowledge that every person is presumed to be able to form a just and exact opinion upon it, and hence it was not error to permit carpenters to give their opinions of the number of nails necessary, the question being a vital one in the case.
    7. EVIDENCE: "Ought” In Sense of Necessary. The use of the word “ought,” in the question, “How many nails ought to be put in?” was evidently used in the sense of necessary, and was not objectionable.

      Appeal from St. Charles Circuit Court. — Sow. H. W. Johnson, Judge..
    Affirmed.

      Wise é McNulty and Seddon & Holland for appellant.
    (1) The court erred in refusing to give the peremptory instruction asked by defendant at the close of all the evidence. Said instruction should have been given because, under the evidence, the act of negligence complained of by plaintiff was not the act of defendant but the act of a fellow-servant. Forbes v. Dunnavant, 95 S. W. 934; Bowen v. Eailroad, 95 Mo. 277; Herbert v. Wiggins Ferry Co., 107 Mo. App. 287; Eoss v. Walker, 139 Pa. St. 42; Armour v. Hahn, 111 IJ. S. 313; Eichards v. Hayes, 45 N. Y. Supp. 234; J ones v. Packet Co., 43 Mo. App. 203; Kennedy v. Spring, 160 Mass. 203; Oelschiegel v. Eailroad, 73 Minn. 327; Ferguson v. Galt, 27 Ont. App. 489; Colton v. Eichards, 123 Mass. 484; Kelly v. Norcross, 121 Mass. 508; Beesley v. Wheeler & Co., 103 Mich. 196 (27 L. E. A. 266); Howard v. Hood, 155 Mass. 391; Dewey v. Parke, Davis & Co., 76 Mich. 631; Adasken v. Gilbert, 165 Mass. 443; Fraser v. Lumber Co., 45 Minn. 443; Peschel v. Eailroad, 62 Wis. 338; McGinnity v. Athol Eeservoir Co., 155 Mass. 183; O’Connor v. Eich, 164 Mass. 560; Johnson v. Boston Tow Boat Co., 135 Mass. 209'; Miller v. Eailroad, 175 Mass. 363; Allen v. Iron Co., 160 Mass. 557; Hoar v. Merrill, 62 Mass. 386; Cregan v. Marston, 120 N. Y. 568; Pfeiffer v. Dialogue, 8 Am. Neg. Eep. 90; Hayes v. Eailroad, 17 Am. Neg. Eep. 542; Callahan v. Trustees, 180 Mass. 183. (2) The court erred in giving instruction A at the instance of plaintiff: (a) Because said instruction improperly states the law in reference to fellow-servants. See authorities cited under point 1. (b) Because there was no evidence upon which to base said instruction. Stone v. Hunt, 114 Mo. 66; Evans v. Interstate Co., 106 Mo. 594; Wilkerson v. Eilers, 114 Mo. 245; Yarnell v. Railroad, 113 Mo. 570; Woods v. Campbell, 110 • Mo. 572. (3) The court erred in giving instruction B at the instance of plaintiff, because there was no evidence upon which to predicate same. See authorities cited under point 2b. (4) The court erred in overruling defendant’s oN jection to certain questions asked plaintiff as an ex-expert, and also in refusing to strike out the answers of said witness upon motion of defendant. Minnier' v. Railroad, 167 Mo. 99; Chrismer v. Railroad, 92 S. W. 378.

      A. R. Taylor for respondent.
    (1) “Appellant’s first contention is that its demurrer to the evidence should have been sustained because the acts of negligence complained of were not the acts of appellant but of fellow-servants. We meet this contention with the distinct claim that the negligence complained as causing the injury was the negligence of appellant’s foreman; both the negligence in providing the brace with defective cleats to the respondent to work with and ordering him to get on the cleats whilst doing the work. We claim that the' evidence for the respondent dearly shows that the negligence causing the injury was the negligence of the foreman; and, if so, the controversy ends on this point. If Christofell was the foreman for appellant in charge of this work, with authority from appellant to control the work and manner of doing the same, and to provide the means and appliances for doing the work, and authority to command and control the servants under him, including the respondent, as to the work they should do and the manner of doing, then he was the alter ego or vice-principal of appellant in these matters, and appellant was and is responsible for the manner in which these duties were performed. The rule is that it is the duty inherent in the master that he shall exercise ordinary or - reasonable care in providing means and appliances reasonably safe and suitable for the servant to work with in the discharge of the duties of his employment; also that he will, in the conduct of the business, use such care in commanding and controlling the work of’ the servant to the end that he shall not he exposed to hazard not ordinarily incident to the service. These well-settled duties of the master he must perform, either in person or by his agent or vice-principal and he remains liable for their performance and can not escape responsibility for their non-performance, by delegating the performance of these duties to another, whether foreman, superintendent, boss, or another servant. Porter v. Railroad, 71 Mo. 78; Moore v. Railroad, 85 Mo. 594; Covey v. Railroad, 86 Mo. 643; Hoke v. Railroad, 88 Mo. 360; Bowen v. Railroad, 95 Mo. 278; Dayharsh v. Railroad, 103 Mo. 577; Sullivan v. Railroad, 107 Mo. 78; Miller v. Railroad, 109 Mo. 356; Russ v. Railroad, 112 Mo. 53; O’Mellia v. Railroad, 115 Mo. 218; Foster v. Railroad, 115 Mo. 180; Coontz v. Railroad, 121 Mo. 659; Donohoe v. Kansas City, 136 Mo. 670; Bane v. Irwin, 172 Mo. 317; Railroad v. Herbert, 116 U. S. 648. (2) The second ground of appellant’s contention, and, in reality, the whole volume of his many contentions, may be couched in the single proposition that, where a master supplies to his servants suitable material and appliances to work with in their duties and entrusts to the servants the selection of the material which is to be used and the manner or mode in which it is used, then for the negligence of a servant in the selection of the material or appliance — or the construction of an appliance the master is not held liable. We agree to this proposition. The trouble with appellant’s contention and authorities is that they cannot be made to fit the facts in this case. And their irrelevancy does not stand the legal test. First, the evidence-.without dispute shows that appellant did not provide the material and appliance in this case, and leave to the servants the entire work of providing the cleat on the brace. The evidence is clear that the master’s vice-principal conceived the work of providing the brace with the cleats on it. He told the men to get the brace for the purpose. He commanded the men to nail on to the brace the two cleats in question. He stood by watching the men whilst the two braces were being nailed on to the brace. He saw how it was being done. He was in five feet of the men who were nailing on the two braces looking at the work. (3) The foreman was not a fellow-servant with respondent. This court, speaking to this precise point, holds: “The foreman in directing plaintiff’s work, what he was to do, where he was to do it and how he was to do it, was performing the master’s duty pro hac vice and was a vice-principal.” Bane v. Irwin, 172 Mo. 317, citing Donohoe v. Kansas City, 136 Mo. 670; Miller v. Railroad, 109 Mo. 350; Russ v. Railroad, 112 Mo. 45 ; Moore v. Railroad, 85 Mo. 588.
   GANTT, J.

This action originally instituted in the circuit court of the city of St.- Louis, on change of venue was sent to the circuit court of St. Charles county, where it was tried. The petition alleges that on the seventh day of July, 1902, plaintiff was in the employ of the defendant, the Rountree Construction Company, in the capacity of a carpenter, and was engaged for said company in assisting in constructing a wall for the Industries Building at the World’s Fair grounds in the city of St. Louis, on which building the defendant was a contractor. That on the last-mentioned day whilst plaintiff was in the due discharge of the duties of his employment, he was engaged in taking a rope off of a brace about thirty-five feet above the ground, and whilst so doing, a cleat or step on said brace, designed by the defendant and furnished by the defendant for the plaintiff to be upon and to support him whilst doing said work, broke and caused the plaintiff to fall to the ground, breaking his right leg between the knee and the ankle, crushing and breaking the bones, and so injuring said leg as to necessitate its amputation on the fourteenth of July, 1902. And he was otherwise bruised and permanently injured. The charges of negligence in the petition are that the defendant was negligent in providing for the plaintiff’s use a cleat or step which was improperly and insecurely nailed and fastened to said brace and was too weak to sustain plaintiff’s weight thereon whilst engaged in doing said work; that defendant was negligent in providing plaintiff said appliance to be upon in the discharge of said duty of his employment, and that defendant’s foreman in charge of said work was negligent in ordering and commanding plaintiff to do said work when said cleat was in such'defective and insecure condition, as he knew, or by the exercise of ordinary care would have known in time to have averted said injury to plaintiff, which negligence of defendant and its foreman directly caused and contributed to cause plaintiff’s said injury. That by reason of said injuries, plaintiff has suffered great pain of body and mind, and has been disabled from labor permanently and is maimed and crippled for life and has incurred large expense for medical attention and for medicine to the sum of fifteen thousand dollars.

The answer of the defendant was a general denial and general plea of contributory negligence and a plea of assumed risk.

The trial resulted in a verdict and judgment for the plaintiff for seven thousand five hundred dollars. After an unsuccessful motion for new trial, the defendant perfected its appeal to this court.

The testimony tends to show that the defendant company on the seventh of July, 1902, and for some months' prior thereto; had been engaged as a contractor in the erection of the Varied Industries Building at the World’s Fair grounds in the city of St. Louis, and for several months plaintiff had been working for the defendant in connection with this work in the capacity of a carpenter. His work called upon him to do considerable climbing and to work at considerable heights. Plaintiff was twenty-nine years old at the time, and had been a carpenter for thirteen or fourteen years. On the day in question, the wall had been raised in skeleton form about fifty feet high, and about quitting time a windstorm threatened, and the foreman in charge, wishing to secure the unfinished wall against the danger from the wind, requested the plaintiff, when the whistle blew to stop work, to remain on the wall to fasten the upper end of a brace, which the-foreman directed to be put up against the pillar to secure and strengthen it; this brace, when in position, rested with one end on the ground and the top end against the pillar and stood up about an angle of forty-five degrees. The brace was about thirty-five feet long. The foreman selected this •brace and caused his.other employees on the ground to bring it to the wall and directed two carpenters, who were working in the same gang with the plaintiff, to nail two cleats on the brace for plaintiff to stand on while removing the rope therefrom. The cleats were ordered to be nailed near the top end of the brace when it should be erected and were nailed on while it lay on the ground and before it was hoisted, in the immediate presence and sight of the foreman: These cleats were made out of a piece of plank eighteen inches long and about seven-eights of an inch thick and six inches wide; one of the carpenters on the ground split this piece into two pieces to make the two cleats, and the plaintiff testified that Mr. Christofell, the foreman, stood there and instructed them to nail it on. The foreman was standing about five feet away from the cleats while the two carpenters were nailing them on the brace. On cross-examination he testified as follows: “Q. He continued to look at them until they had nailed both cleats on, did he? A. I could not say that. I had to attend to my work, I was not watching him all the time. Q. You do not remember whether he continued to watch them and saw them nail the cleats on? A. At the time I seen him, he was standing about five feet from the cleats and watching them put them on. Q. But whether his attention was called to something else before he finished, you do not know? ' A. No, I do not know. The brace was then hoisted by means of a rope at the top end and placed against the wall;' after the brace had been so raised and was in position, the plaintiff testified that the foreman told him to let the rope down and he would send him up a block of wood to nail over the top of it; to do this plaintiff had to step out on one of the cleats that had been fastened to the brace in order to get the rope. He stepped on the top cleat to unfasten the rope and as he stepped on it and got his hand pretty near the rope, the cleat gave away and he fell about thirty-five feet to the ground. Several witnesses testified that they examined the brace and cleats immediately after plaintiff fell and found one cleat broken off on one side, one side had pulled out, that is, the nail had pulled out. The cleat was fastened to the brace by two eight-penny nails. These witnesses, one of whom was a superintendent of construction for the defendant at that time, and another carpenter, testified that in the ordinary course of business where a cleat was to be nailed on under such circumstances, to support the weight of a man, not less than four nails should be put in the cleat in order to make it reasonably safe. On cross-examination plaintiff stated that during the time he worked for defendant he did a good deal of climbing to get the 6x6 timbers up that constitute the wall. It was necessary to tie a rope around them to raise them up*, they were raised by steam power. Plaintiff’s work in this connection was mostly to untie them; he knew that the brace was a 6x8' timber. One end of the rope was fastened to the brace and the other end was on the ground. When the brace was in position, witness was to fasten it by nailing cleats along its side from the brace to the upright. He testified that from his position on the wall, he saw the two carpenters, whose names he did not know, nailing the cleats onto the brace. He stated that if he had known how many nails were in it, he never would have got on it. He saw them in the act of nailing, but did not see how many nails they put in it. He stated also that the foreman pointed out the piece of timber out of which the cleats were made, to the carpenters. The brace was yellow pine. He testified also that he weighed about one hundred and fifty-five pounds; that . in his opinion, as a-carpenter, it would take four eight-penny nails to hold that weight; two such nails would not hold his weight; the strength depends also on the different ways of driving the nails in.

On the part of the defendant, the evidence tended to contradict the plaintiff’s evidence and to show that two nails in the cleat were sufficient. Mr. J. O. Settle testified that he was in the contracting and building business and had had about fifteen years experience as contractor and engineer in the construction of buildings, and gave it as his opinion that two eight-penny nails would be ample to hold a cleat eighteen inches long and seven-eighths of an inch thick nailed to a brace 6x8 inches when a man’s weight is placed upon it; that it would be sufficient to support three hundred and fifty to five hundred pounds. He testified that he had made an actual experiment to test it.

Mr. Henry Christofell testified that he was a carpenter and had been for twenty years and on the seventh of July, 1902, was foreman of carpenters and had charge of the gang of carpenters in which plaintiff was working; that plaintiff had been assisting in the construction of walls and in bracing walls. He had had a good deal of experience in that direction and was a good climber; that along in the evening about four o’clock it began to rain, and they were bracing the wall at the time the whistle blew. The whistle was a signal for the men to quit. They were all union men and obeyed the whistle. Witness looked up at plaintiff and asked him to remain upon the wall and fasten the timber. The brace at that time was up against the wall ready to be fastened. He also told Mr. Fritz, another one of the carpenters, that he had better stay and help fasten the timber; that thereafter witness turned and the plaintiff fell. He denied directing plaintiff to go out on the timber and unfasten the rope; he denied also that he told him to lower the rope, that he would send him up cleats or timbers to support the braces; that if plaintiff needed other cleats he could have used the other end of the rope. He also testified that two eight-penny nails were sufficient to secure the cleat. That when they were getting the rope to raise this brace witness had instructed one of the carpenters to nail the cleat so that when the timber was placed in position and fastened, they could get out on these cleats and loosen the rope. It was simply a foot rest and support in climbing down. He could not testify that he saw these cleats nailed on the timber. He ordered the carpenter to nail them on. He does not recall the name of the man he asked to nail the cleat on. He was one of the same gang that plaintiff worked in under the witness. On cross-examination he stated that he directed the brace in question to be raised and had the cleats put on the brace and that he saw it done. He also stated that these cleats were put on the brace for a man to get out on, that was their purpose. From the accompanying statement and summary of the evidence, it is apparent that the facts of this case are not complicated and the contradictions very few and yet the conclusions of law drawn by the respective counsel for plaintiff and defendant are widely divergent.

I. On the part of the plaintiff it is insisted that the testimony discloses that the master through its vice-principal and foreman, Mr. Christofell, negligently furnished plaintiff an insecure and unsafe appliance upon which to do the work which it required him to do and by reason thereof he was injured and hence it is liable; whereas on the part of defendant it is insisted, first, that fastening the cleats with two eight-penny nails was sufficient to make them safe, and, secondly, that assuming that the plaintiff’s theory is correct and that the brace was insufficiently nailed with two' eight-penny nails when there should have been at least four, and that the cleat broke off or gave way on that account, the negligence in the case was that of the two carpenters who nailed them and as they were members of the same gang with plaintiff and under the same foreman, they were fellow-servants with plaintiff and defendant is not liable to plaintiff for their negligence. It is urged that, as the foreman did not direct the carpenters in preparing the brace to use two nails only in attaching the cleats to the brace-timber or in what direction to drive them and did not restrict them in the use of nails of which there was an ample supply, the.carpenters alone were guilty of negligence and not the foreman. In our opinion this is a very narrow, view to take of the respective obligations of the defendant and the rights of plaintiff. The dnty of the master to exercise reasonable care to the end that the place in which his servant is required to work is reasonably safe is a primary duty and one that he cannot delegate to any servant high'or low so as to escape liability for a negligent act thereof. That Mr. Christofell was the alter ego, the vice-principal in charge of defendant’s work, and that plaintiff was his servant, are admitted. That the defendant, through Christofell, conceived the necessity of bracing the unfinished wall or pillar so as to protect it against the threatening windstorm and that he devised the plan of bracing it with long timber, he himself testifies; that he personally directed plaintiff to remain on the wall to secure the top end of the brace when it should be erected and that'he personally directed the nailing of the cleats on the brace-timber for the purpose of having plaintiff step on and stand on it while disengaging the hoisting rope, appears by his own testimony; that he pointed out the timber out of which the cleats were made and that he stood within five feet of the carpenters looking at them while they were nailing on the cleats, appears in plaintiff’s testimony.

The fundamental question then is, whose dnty was it to provide plaintiff a reasonably safe place upon which to stand while he carried out the foreman’s (Christofell) instructions to remove the rope and fasten the ton end of the brace to the upright pillar already in the wall, the foreman’s or the fellow-servants, the carpenters on the ground? We think it is too clear for contradiction, first, that it was the master’s duty to devise the appliance or support for the wall and to supply it, and if, as it did, it required plaintiff to stand upon it to remove the rope and' attach it by cleats to the wall, to see that it was reasonably safe for him to do so and the furnishing of this place for plaintiff to work was a personal duty which it could not delegate, but, secondly, not only was it the foreman’s duty to furnish a safe place for plaintiff to stand in order to carry out the foreman’s orders, but the testimony abundantly establishes that the foreman undertook to furnish the appliance on which plaintiff was to do his work in fastening the top end of the brace. The foreman did not order the carpenters on the ground to brace the wall and leave it to them to select the main brace-timber and decide whether they would nail cleats on it, and go away. He determined the necessity of bracing the building. He personally selected the long brace-timber, directed it to be brought to the foot of the wall. He says himself that he told one of his men to nail on the cleats. When pressed as to whether he did not see just how the cleats were attached or nailed to the main brace-timber, he said he could not say that he saw the cleats nailed.on the timber, but plaintiff testified the foreman was standing in five feet of the men who were nailing the cleats and watching them put them on and Fritz testifies Christofell was there, when it was being done. Under all this evidence it cannot be fairly contended that the foreman himself did not furnish the brace with the cleats on it and that defendant is not responsible for his failure to see that it was made safe for plaintiff to stand on. The defendant by its foreman undertook to furnish plaintiff a reasonably safe step to stand on to release the rope and fasten the top of the brace-timber to the wall and plaintiff had a right to act upon the assumption that it had been safely done, in the absence of knowledge to the contrary, and there is nothing to show there was anything to call his attention to the insecure way in which the cleats were nailed. As between the plaintiff and defendant as to this appliance, the duty rested upon defendant and it could not devolve it upon the carpenters on the ground, and certainly it did not by the simple fact that two of them drove the nails in the cleats under the direct supervision and at the order of the foreman. Their acts in so doing were the acts of defendant in furnishing an appliance which defendant was required to furnish plaintiff, and not the fellow-servants of plaintiff. As said by Judge Sherwood for this court in Sullivan v. Railroad, 107 Mo. 1. c. 78, “The fact that Prather [Christofell] was present and ordered and superintended the removal [in this case the preparation of the brace] of the last section . . . was tantamount to a tacit assertion that it was safe for plaintiff to proceed with the removal of that section, and plaintiff was not bound to search for danger, but had a right to rely upon the judgment and discretion of .defendant’s foreman that he would fully perform the measure of his duty towards him.” And so we say here that plaintiff having been required by Christofell, the foreman, to remain on the wall to fasten the top end of the brace and having seen Christofell select the timber and the cleats and heard him direct them to be nailed on and having observed his supervision of the preparation of the brace and the cleats, he had a right to rely upon the assumption that Christofell had done his duty in seeing that it was safe for him to stand upon and do the work he was ordered to do, and he did not assume the risk of danger for the negligent way in which it was prepared. In our opinion, the carpenters who did the nailing represented the defendant in its relation of master to plaintiff and not as fellow-servants of plaintiff, and the demurrer to the evidence was properly overruled.

II. But the learned and industrious counsel for defendant insist that where a master supplies his servants suitable material and appliances to work with in their duties and entrusts to the servants the selection of the material which is to be used and the manner or mode in which it is used, then for the negligence of a servant in the selection of the material or the construction of an appliance, the master will not be liable. Abundant authority can be found to sustain this statement of the law, and is furnished by defendant’s counsel. [Ross v. Walker, 139 Pa. St. 42; Bowen v. Railroad, 95 Mo. 277; Forbes v. Dunnavant, 198 Mo. 193; Herbert v. Wiggins Ferry Co., 107 Mo. App. 287; Armour v. Hahn, 111 U. S. 313; McGrinty v. Reservoir Co., 155 Mass. 183; O’Connor v. Rich, 164 Mass. 560; Miller v. Railroad, 175 Mass. 363; Dewey v. Parke, Davis & Co., 76 Mich. 631; Beesley v. Wheeler & Co., 103 Mich. 196.] That these cases are not pertinent to the ease in hand is apparent, for in this case the defendant through its foreman Christofell did not provide the material and leave to the other workmen the entire work of providing the brace with cleats on it. On the contrary the foreman selected the brace-timber and the piece of timber out of which to make the cleats and conceived and planned the brace to prop' the wall. He stood by and commanded the men to nail the cleats on the brace and saw how it was being done, in a word, he originated the scheme for staying the wall against the windstorm and was present all the time directing the work to be done, and ordered the plaintiff to co-operate in the work by fastening the top end of the brace when it should be erected. It must be borne in mind at all times that in this case the plaintiff was not working with the gang at the foot of the wall or in any manner engaged in preparing the brace, and at no time did the foreman leave the matter to the discretion of the workmen either in the selection of the timber or the manner of constructing the brace.

A reference to the cases cited by the defendant will accentuate the distinction between those cases and the case at bar. Thus, in Bowen v. Railroad, 95 Mo. 277, the facts appeared to be that the defendant in the construction of its road built a temporary bridge over Grand river in Chariton county. This bridge was used for the erection of the permanent construction' therefrom and for the passage of the construction train. Plaintiff and others, a gang of bricklayers, took the evening construction train for their lodging place on the east side of the river, and as the train was passing over the bridge, about one hundred feet of it gave way. The engine and several cars went down, and the plaintiff, to save his life, jumped from the car and landed in the river and received the injuries of which he complained. There was no evidence that he was guilty of negligence. It appeared that the plan of the bridge was the standard plan for permanent wooden bridges where there is no driftwood, and that the material and timbers used were of standard size and good quality. It appeared also that inspections were made of the bridge by the superintendent three or four times a day. The court refused to instruct that if the defendant selected a competent person to plan the bridge, good materials and competent mechanics, and if the bridge was planned by such foreman and built by such mechanics according to the plan and of such materials, then defendant was not liable for defects in the construction. - In discussing the refusal to give this instruction, Judge Black, speaking for this court, said: “A servant is not a mere machine, employed to drive a nail here or a spike there, where directed by the master or some one representing him. Many things involving the exercise'of judgment may properly be left to the servant. Hence, it has been held, where the master employs competent workmen, and provides suitable material for staging and entrusts the duty of erecting it to the workmen, as a part of the work which they are engaged to perform, that he is not liable to one of the workmen for injuries resulting to one of them from the falling of the staging. The negligence in such cases resolves itself into the negligence of a fellow-servant; and the principle has been applie.d under a variety of circumstances. [Kelly v. Norcross, 121 Mass. 508; Killea v. Faxon, 125 Mass. 485; Armour v. Hahn, 111 U. S. 313; Peschel v. Railroad, 62 Wis. 338.] It is just as well settled that if the master undertakes to furnish structures to be used by the servant in the performance of his work, the master must use due care in the erection of the structure, and, if there is negligence on his part, or negligence on the part of someone representing him in that respect, he is liable for injuries sustained by the servant. [See authorities just cited; Arkerson v. Dennison, 117 Mass. 407.] Now in this case it was no part of the duty of the plaintiff to build or keep the bridge in repair. Neither he nor his foreman had anything to do with it. It was held out to him as reasonably safe for the passage of construction trains, by the very act of taking him back and forth. The bridg’e was planned and built under the supervision of foremen employed for that purpose. The acts of these foremen were the acts of their principal and not the acts of a fellow-servant of the plaintiff. There is nothing in this case to take it out of the rule that the master is bound to use reasonable care and foresight in furnishing and keeping in repair structures and appliances to be used by the servant in the prosecution of the work assigned to him. This duty is personal to the master, and if entrusted to a foreman, the negligence of the foreman is the negligence of the master.” So in this case, as already said, it was no part of the duty of the plaintiff to construct or aid in the construction of the brace and the cleats. It was held out to him by the foreman as a reasonably safe place upon which he could do the work, which he had been directed to remain on the wall to do.

In Arkerson v. Dennison, cited by this court in Bowen v. Railroad, supra, the plaintiff was injured by the falling of the staging upon which he was directed to go by the defendant for the prosecution of the work for which he was employed. The staging had been erected before the plaintiff entered the employment of the defendant. The evidence tended to show that it was improperly constructed and insecure, either by reason of unsuitable material used or by reason of negligence in fastening it together sufficiently-by nailing, or for both or either reasons; That it was insecure and improperly constructed in some way was sufficiently apparent from the account given of the manner of its falling. The court said: “On the one hand, the workman takes upon himself the risks ordinarily incident to the employment he engages in; and those include the results of negligence on the part of others employed in the same service. On the other hand, ‘the master is bound to use ordinary care in providing suitable structures and engines and proper servants to carry on his business, and is liable for any negligence in this respect.’ .... Whether a particular structure or appliance is one for which the master is responsible to his servant may depend upon circumstances, including the nature and scope of the employment of those engaged in its preparation and use. It may depend upon the question whether the direction and charge of the work is confined to the workmen or some of them, or retained by the employer or left unprovided for. If the employer directs his workmen to do certain work, leaving it to them to provide the structures and appliances required for its prosecution, he may be responsible only for care in selection of the men and the materials assigned for it. But if he simply employs them to work under his direction, giving them no charge or responsibility in regard to the result to be accomplished, or the appliances to be used, that responsibility remains with him. . . When the preparation of the appliances is neither entrusted to nor assumed by them, the master may be held guilty of negligence, if defective appliances are furnished, even though the workmen themselves are employed in the preparation of them.”

The case of Forbes v. Dunnavant, 198 Mo. 193, is much relied upon by the defendant. In that case, Forbes was employed by Dunnavant, a contractor,, and. was injured while building a scaffold. It appeared from the evidence that one Redford worked as a carpenter with the plaintiff in building the scaffold. The scaffold broke and Forbes fell and was injured dangerously. It appeared that the cause of the injury was that one of the cross timbers under the plank on which he was standing broke. There was evidence that this cross timber was worm eaten and dozed, that is to say, had become soft, starting to rot. This cross timber was selected by Redford, the fellow-servant, who was engaged with the plaintiff in the erection of the scaffold. It was stated by the court that the evidence was uncontradicted that a mass of raw material was furnished by the master for the use of Forbes and Redford in erecting the scaffold. It was not contended that none of this timber was suitable. Redford selected a bad board from the lot which broke under the weight of the plaintiff and his helper, and badly injured plaintiff, and the question; was, who selected the board, was it the master or a fellow-servant? If the master could not delegate the duty of selecting that particular board'then he was liable; otherwise, not. The court reached the conclusion that where the master buys a mass of raw material, some bad and. some good, a result incident to all buying by the quantity in the market, and entrusted the selection out of this mass to carpenters employed to build the scaffold therewith, if one of said carpenters selected a bad board, it was the act of a fellow-servant for which the master would not be responsible. That is to say, that the master might trust the servant to perform the ordinary and simple duties incident to the servant’s employment and resting upon the servant’s knowledge and skill. In that ease there was no evidence or claim that the foreman of the defendant had anything to do with the selection of the unsound plank or was present and saw it when it was put into the scaffold. The facts of that ease of themselves distinguish it from this case, in which the foreman did all the selecting and all the superintending, and the plaintiff relied upon the appliance which was furnished him under the direction of the foreman.

These cases sufficiently indicate the principles announced in all the other cases cited on this point by the learned counsel for the defendant. The contention of the learned counsel for the defendant that the negligence in this case resolves itself into the negligence on the part of the two carpenters who did the nailing of the cleats to the brace-timber, is not supported by the cases he cites. On the contrary, in Arkerson v. Dennison, 117 Mass. 1. c. 412, cited and approved by this court in Bowen v. Railroad, 95 Mo. 277, it is said: “When the preparation of the appliances is neither entrusted to nor assumed by them, the master may be held guilty of negligence, if defective appliances are furnished, even though the toorkmen themselves are employed in the preparation of them.” So that the mere fact that these two carpenters nailed the cleats to the brace under the direct supervision of defendant’s foreman will not relieve the defendant of liability for the defective' appliance, the preparation of which was in no manner entrusted to, nor assumed by them, but the latter appliance was planned and directed by the foreman in person.

III. The first instruction given for the plaintiff is challenged because the court submitted to the jury that if the cleat or slat upon which plaintiff was directed to stand in the performance of his labor, broke or gave way, that it was too weak to sustain the weight of the plaintiff and was defectively and insecurely fastened or nailed and that defendant’s foreman did not exercise ordinary care in so providing said slat in such insecure condition for the plaintiff to he upon it in the discharge of his duties, and that the said foreman did not exercise ordinary care in commanding plaintiff to do said work of untieing the rope from said brace whilst it was so insecurely fastened, plaintiff was entitled to recover. It is insisted again that it was not the foreman who provided the cleat in question insufficiently nailed, for plaintiff to work upon, but it was the plaintiff’s fellow-servant who provided such cleat so insecurely nailed. And the argument is repeated that while the master might be said in a remote sense to have furnished the cleat and the brace for the plaintiff to work upon, yet, as he had furnished a sufficient quantity of good materials wherewith to construct the brace, he had discharged his entire duty and the insecurity was due solely to the plaintiff’s fellow-servants or fellow-carpenters who placed two nails in it instead of four. As already stated, the facts in evidence do not sustain the defendant’s contention. But on the contrary, show that the defendant’s foreman did not leave to the carpenters the designing and preparation of this brace, but directed its preparation himself and furnished the plaintiff with this appliance upon which to work. And the facts of this case do not take it out of the rule that the master is bound to use reasonable care and foresight in furnishing and keeping in repair structures and appliances to be used by the servant in the prosecution of the work assigned to him. And equally without merit is the second objection to this instruction, that it improperly submitted to the jury the question whether the defendant’s foreman failed to exercise ordinary care in commanding the plaintiff to do the work of taking the rope off of said brace while said slat was in a defective or insecure condition. The whole device having been planned and prepared under the immediate supervision of the defendant’s foreman and furnished to plaintiff upon which to do his work, it was his duty to have seen that the appliance was reasonably safe and secure for the plaintiff to work upon before ordering him to use it.

IV. Instructions B and -0 are also assailed, but as they announce principles as to the respective obligations of master and servant, which have been approved by this court on numerous occasions and fall within the rules of law already announced in this opinion, it is unnecessary to discuss them further.

V. Error is assigned upon the refusal of the defendant’s eighth, ninth, tenth and eleventh instructions. These instructions submitted the defendant’s theory already noted that the defendant had discharged his entire duty to the plaintiff if it furnished sufficient and suitable timbers for the brace and cleats and sufficient nails and tools wherewith to fasten said-timbers and having done this that even though the fastening of the cleats was done in a careless and negligent manner, the plaintiff could not recover because the carpenters who nailed the cleats to the timber were fellow-servants of the plaintiff. The court modified and amended all of these instructions so as to conform them to those given for the plaintiff, on the theory that if the jury found from the evidence that the defendant was present in the person of its foreman and commanded and directed the said work to be done, and the manner in which it should be done, then plaintiff could recover.

VI. Finally, it is insisted that the court erred in allowing the plaintiff, over the objection of the defendant, to answer a question asked him as an, expert. While the- plaintiff was on the stand his counsel asked him the following questions: “Q. You are a carpenter, are you? A. I ain’t now, but I was. Q. Well, I say you was ? A. I was, yes, sir. Q. And for security of a cleat such, as that to support the weight of a man, how may nails ought to he put into it?” Objection by counsel for defendant: “"We object to that, Your Honor please, as not a proper subject for expert testimony.” Mr. Taylor: “I think it is.” Mr. Holland: “The jury knows the weight of a man and knows the size of timber and nails.” Mr. Taylor: “I don’t think its a matter of fact any more that the court would know without information from a man practically what would be necessary in the nailing of a cleat of course, we have a general idea, but I don’t think as a matter of fact every juror--and I would not know, I would not have much idea what number of nails ought to be put into a cleat to support a man’s weight, and what kind of nails, and I think it is perfectly competent to .prove that fact from a man who is experienced.” The objection was overruled and the defendant excepted. To this the plaintiff answered, “Well, it depends upon the size of the nail, whether four-penny, six-penny or whatever it was, I couldn’t state, but if it was sixpenny it would take about six or eight; if it was eight-penny, put in about four; ten-penny, four would be the least amount I would depend upon, or any carpenter; that’s what we are supposed to put in anything of that kind.” Defendant’s counsel moved to strike out that question and the answer. The objection was overruled and defendant excepted.

It will be observed no objection was made that the witness was not qualified to give an opinion, but simply that it was not a proper subject for expert testimony. It is assumed by counsel that it was a matter of such common knowledge that the jury needed no light on the subject or that an experienced carpenter such as the witness was shown to be, could not aid the jury by experience as to the number of eight-penny nails necessary to sustain the weight of a man. That it was not a matter upon which all reasonable minds would reach one conclusion was demonstrated by the witnesses. Mr. Brown, who was the superintendent of construction of the building for defendant and who had twenty-five years’ experience as a builder, testified that when a cleat was to be nailed under such circumstances, five or six nails would be required. Fritz, another carpenter, testified that, when a cleat was to be nailed to a brace to support a, man’s weight, not less than four nails should be put in it to make it reasonably safe, the brace standing at an angle of forty-five degrees. On the other hand, Mr. Settle, an expert of fifteen years’ experience as a contractor and engineer, testified two eight-penny nails would be ample, and Mr. Christofell gave a like opinion. “Experience, ■ skill and training may be applied in the common affairs of life. The test of admissibility is not the technical nature of the subject-matter with which the evidence deals, but rather whether the skill or experience of the witness, to whatever subject applied, technical-or common, will aid and is necessary to aid the jury.” [17 Cyc. 229.] “Thosepersons who are skilled in mechanical matters are competent to testify to relevant facts which are familiar in the mechanic arts. Such facts may be simple and involve little of the element of reasoning ; as, for example, the action of natural laws, the limits of ordinary observation, the lightness or the tensile or other strength of materials or appliances, under what strain they are at a given time or how their strength is affected by given imperfections.” [17 Cyc. 71.] Thus, in Boettger v. Iron Co., 124 Mo. 1. c. 104, this court said: “The admission of expert testimony to show the effect of a knot or cross-gram upon; the strength of a piece of timber, such as was in question in this case, is assigned for error. The following answer of the trial judge to the-defendant’s objection to that testimony is quite satisfactory: ‘The strength of the timber and other building material is a subject within the scope of the science of civil engineering. It is also, though to a less accurate degree, within the scope of a mechanic’s skill; and, for the purpose of this case, a mechanic’s opinion would doubtless have been as reliable as that of a civil engineer. And there may be many persons who are neither carpenters nor civil engineers, who have had sufficient experience with building material to be able to form very correct opinions about the strength of timber and the effect of a knot in a piece like the one in question, but still I think it is not a matter of such common knowledge that every one is presumed to understand it. Like many other points in arts and sciences with which people generally acquire some sort of familiarity, they still remain the subject of technical knowledge.’ ” The foregoing observations apply here. Upon the resisting capacity of the cleats as nailed to the brace, depended the reasonable sufficiency of the appliance which defendant through and by its foreman tendered to plaintiff and requested him to perform his work. It' was a vital question in the- case and as we have seen was not a matter of such common knowledge that every one is presumed to know how many nails were necessary to render them reasonably safe for a man to impose his weight, but was a matter upon which the conceded experts radically differed. We think the court properly heard the evidence. It may also be remarked that defendant interposed no objection whatever to this class of testimony from Brown and Fritz and availed itself of the same character of evidence from its witnesses, Settle and Christofell. Learned counsel indulge in a criticism of the use of the word “ought” in Mr. Taylor’s question, but it is obvious that this word was used in the sense of “necessity;” that is, how many nails were necessary to hold the cleats so that they would sustain a man’s body. This objection was not urged in the circuit court, hut if it had been, we think it affords no ground for a reversal of the judgment. It is not insisted that the verdict is excessive, and obviously it is not. The judgment should he and is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    FANNIE CAHILL v. CHICAGO & ALTON RAILWAY COMPANY, Appellant.
    Division Two,
    July 1, 1907.
    1. NEGLIGENCE: Presumption in Favor of Injured Party. Where there is no proof to the contrary a presumption arises that deceased was in the exercise of due care at the time he was struck by the railroad engine. But this presumption only obtains in cases where there is no evidence one way or the1 other as to how the accident occurred.
    2. -: -; In Favor of Defendant: Presumption upon Presumption. Although the law will, in the absence of anything showing the contrary, presume that the deceased was in the exercise of due care at the time of the accident, it will not further be presumed that the injury was occasioned by the negligence or carelessness of the defendant, its agents or employees; for that would be building one presumption upon another, a thing the law does not permit.
    3. -: -: -: -: Must be Proved. Negligence upon the part of defendant will not be assumed from the fact that deceased will be presumed to have been in the exercise of due care at the time of his injury, but must be proved by plaintiff to entitle her to recover for his death.
    4. -: Presence of Deceased: Inferred Knowledge. The evidence showed that it was the custom of defendant in moving an engine from the coming-out track to the main track to have some switchman precede it or ride on the rear end as it backed out, and to send a sufficient force of men in time of snowstorms to clear the switches, and that on the night of the’ accident there were four men, including deceased, engaged in that work. Held, that, the men being in the service of defendant, the engineer on the coming-out engine must have known of their presence, and these facts authorized an instruction predicating plaintiff’s right to recovery upon the fact that defendant’s servants knew or hy the exercise of ordinary care would have known of the presence of deceased on the coming-out track.
    5. -: Knowledge of Presence: Knowledge of Peril: Inconsistent Instructions. Defendants may have known of deceased’s presence on the track, and yet not have known‘of his peril; or they may have known of his presence and peril, yet not have been negligent in not discovering his peril in time, hy the exercise of ordinary care, to avoid injuring him. So that an instruction for plaintiff to the. effect that if defendants knew or by the exercise of ordinary care could have known of deceased’s presence on the track and negligently, • that is, without ringing the hell or sounding the whistle, backed the engine over him, and an instruction for defendant which told the jury that “there is no proof of the negligence of defendants in not having discovered deceased at or near the track, and in a position of peril, in time by the exercise of ordinary care to have avoided injuring him,” are not inconsistent. They relate to different matters.
    6. -: Instruction: Assumption of Fact. The assumption in an instruction of a fact about which there is no controversy, or in'relation to which the evidence is clear and undisputed, is not error or prejudicial to the adverse party.

      1. -: -: -: Admitted in Answer. Where the defendant alleged in its answer that “the injuries to deceased mentioned in the petition were caused hy his own negligence at the time and under the circumstances described in the petition,” it will not he held that an instruction which assumes as an undisputed fact that deceased was struck hy the engine mentioned in the petition, was error.
    8. -: -: —-: Evidence All One Way. Where the evidence all tended to show that deceased was struck by an engine at the place and time charged, and, while no person saw the a-ccident, the circumstances all tend to indicate he was killed in the way and hy the engine as charged, an instruction for plaintiff which assumes that he was struck by that engine, is not erroneous.
    9. -: Sweeper on Track: Duty. It is as much the duty of an employee of defendant, engaged in sweeping snow from the tracks, to look out for approaching engines and cars as it is the duty of an engineer and fireman to look out for him and to avoid injuring him.
    10. -: Employee: Struck by Engine: Contributory Negligence: Demurrer. Deceased had been working for the defendant railroad company for . about two years. On the dark night of' his injury £e was engaged in sweeping snow off of the switches, so that they might be thrown and the engines coming out of the roundhouse might pass from one switch track to another onto the main track. He knew the exact time the engine which struck him would be backed out of the roundhouse, to be attached to a regularly scheduled train. As the engine approached, making the ordinary noise of an engine operated by its own steam, and running at a rate of speed not exceeding three miles an hour, he allowed himself to be struck by it, although he could, even when it was within ten feet of him, have stepped aside and avoided the collision. Neither his vision nor his hearing was impaired, and his duty required him to go between the tracks. Held, that, even though there was no bell rung or whistle sounded, and even though defendant’s engineer -and fireman were negligent in not discovering his perilous position in time to have avoided the injury, he was guilty of contributory negligence in failing to look for the approaching engine, and his widow cannot recover for his death.
    Appeal from Randolph Circuit Court. — Row. A. R. Waller, Judge.
    Reversed.

      Scarritt, Scarritt <& Jones for appellant.
    Defendant’s demurrer to plaintiff’s evidence and its peremptory instruction should have been given. Aerkfetz v. Humphreys, 145 IT. S. 418; Riccio v. Railroad, 189 Mass. 358; Lynch v. • Railroad, 159 Mass. 536; Keefe v. Railroad, 92 Iowa 182.

      Robertson & Robertson for respondent.
    (1) Plaintiff’s first instruction properly declared the law. The presumption of due care always obtains in favor of the plaintiff in the absence of testimony to the contrary. Meadows v. Ins. Co., 129 Mo. 76; Flynn v. Railroad, 78 Mo. 212; Buesching v. St. Louis Gas Light Co., 73 Mo. 233; Holding v. St. Joseph, 92 Mo. App. 143; Smiley v. Railroad, 160 Mo. 629; Weller v. Railroad, 164 Mo. 180 ; Swanson v. Sedalia, 89 Mo. 121; Railroad v. Landrigan, 191 IT. S. 461; 22 Am. and Eng. Ency. Law (2 Ed.), 1280; note 1. (2) It was negligence for defendant to back the train without signal or notice. Rinard v. Railroad, 164 Mo. 270; Riñe v. Railroad, 100 Mo. 228; Sullivan v. Railroad, 97 Mo. 119; Dixon v. Railroad, 109 Mo. 426; Church v. Railroad, 119 Mo. 203; Fleming v. Railroad, 89 Mo. App. 129; Thompson v. Railroad, 93 Mo. App. 548; Kelly v. Railroad, 95 Mo. 279; Weiss v. Iron Co., 31 C. C. A. 363, 88 Fed. Rep. 23; McMarshall v. Railroad, 80 Iowa 757; Railroad v. Dunleavy, 129 111. 132; Whalen v. Railroad, 75 Wis. 654; Erickson v. Railroad, 41 Minn. 500; Sobéski v. Railroad, .41 Minn. 169.
   BURGESS, J.

Plaintiff, the widow of James Cahill, deceased, brought this suit in the circuit court of Randolph county, at Moberly, Missouri, against the appellant and one Rufus McCormick, the locomotive engineer of said company, for five thousand dollars damages, for negligently and carelessly backing upon and over deceased one of the engines and tenders of defendant company, of which said McCormick was at the time in charge and control as the servant of the company, and killing him, said Cahill.

The accident occurred on the morning of February. 15, 1903, and suit was begun on July 25, 1903.

On the first day of the September term, after the filing of the petition and bond for removal to the Federal court for the Northern Division of the Eastern District of Missouri, at Hannibal, which petition was denied, the defendant company, as it might do, took a transcript of the record and filed it in the Federal court, where said cause remained until the seventh day of January, 1904. The plaintiff then filed her motion to remand, which coming on to be heard before Judge E. B. Adams, sitting as a circuit judge, the said cause was remanded to the State court, and a certified copy of the order remanding the cause was filed with the clerk of the circuit court at Moberly, Missouri, February 15, 1904.

On September 13, 1904, tbe defendants filed separate answers. Tbe answer of tbe railway company was a general denial, and a plea of contributory negligence and assumption of risk. The answer of McCormick was, first, a general denial, and then; an allegation that the alleged injury, if due to any negligence of any agent or servant of the defendant railway company, which this defendant denied, such negligence was that of a fellow-servant of the said James Cahill, working together with him at the time and place mentioned, in a common purpose, and that as to the liability of this defendant, such negligence, if any, and the injuries resulting therefrom were within the risks and perils of the said James Cahill’s employment, and were assumed by him in his’said employment.

The action was tried in the circuit court at the September term, 1904, before the court and a jury, resulting in a verdict and judgment in favor of the defendant, McCormick, for costs, and in favor of plaintiff and against the railway company for the sum of five thousand dollars. After unsuccessful motions for new trial and in arrest, the defendant company appealed.

The facts out of which this action grew are substantially as follows:

The deceased, James Cahill, worked for the defendant railway company in its yards at Slater, Missouri, where it maintained a division, and where it owned and used a large number of tracks. On the night of February 14, 1903, there was a heavy fall of snow, and a force of men, including the deceased, was required to remain in the yards during the night to keep the switches cleared of snow. Frank Cahill, brother of the deceased, was section foreman, and he remained with the men until about two o’clock next morning, when he went home, leaving the deceased in the yards with the instructions to keep the switches cleared of snow. He also instructed him to go ahead of a certain engine called the ‘ ‘ Hummer ’ ’ engine which left the roundhouse in the morning and see that there was no snow or ice on the switches ahead of it. The deceased carried with him a lantern and a broom, the latter for the purpose of clearing the snow off the rails, and it would appear that in order to perform his work it was necessary to go between the tracks and clear the snow away from the points of the rails at the switches, and that, to do this effectively, it was often necessary to stoop or kneel down while working.

The engine in question, No. 251, was backed out of the roundhouse some time before six o’clock on the morning of February 15, 1903, for the purpose of pulling a passenger train called the “Hummer” from Slater to Kansas City, and which left Slater at 6:10 a. m. The track on which the engine backed out was called the “coming-out track,” and ran by a water tank, and in order to reach the main track it was necessary for the engine to cross several side tracks and switches and also the public road which crossed the tracks. On this occasion the tender of the engine was filled with coal, and backed out to the water tank by the hostler, and then the engineer, Rufus McCormick, took charge of it. After the engine’s tanks were filled with water it was backed away slowly from the water tank towards the main track by the engineer, and it would appear that the deceased was struck by the engine or tender at a switch about one hundred and fifty feet east of the water tank and was dragged along several hundred yards, to the last switch at the main track, where the body fell off and was found. It was yet quite dark, and nobody saw the deceased struck; neither the engineer nor fireman knew anything about it until after the engine had arrived at the depot on the main track. At the first switch east of the water tank there was found a portion of deceased’s clothing, also blood and pieces of flesh, and the track or imprint of the body as it was dragged along was easily traceable through the snow from the point where it was struck to the point where it was found. The handle of the broom carried by the deceased was cut in two, and his lantern was found beside the track at the point where he was struck.

The testimony on the part of the plaintiff differs widely from that for the defendant, especially as to .signals.

According to the testimony of George Adams, one of plaintiff’s witnesses, who worked in defendant’s roundhouse, and who was on the tender of the engine while its tanks were being filled with water, the engine was backed away from the water tank and passed over the first switch without any signal whatever. He noticed a headlight on the engine, but stated that there was no light on the rear end or tender as it backed away. There was a small light hanging from the roof of the cab, but this,, he said, could not be seen from the direction the engine was moving on account of the fact that the tender was piled full of coal and obscured it. Witness said that the track curved east of the water tank, and that the engineer from the position he occupied could not see a person on the track ahead of him, as the coal on the tender was piled so high that he could not look over it. He did not hear the bell ring nor the whistle blow before the engine started, nor did he see anybody on the engine save the engineer.

Ben Givens testified that he lived within one hundred yards of the railroad track and by the county road which crossed the track about one hundred and fifty yards east of the water tank; that on the morning deceased was killed he was awakened by two loud cries of .somebody in distress; that he got up and looked out in the direction of the railroad yards, which was the direction the cries came from, hut conld see nothing except some cars in the yard. It was then about 5:30' o’clock, and the snow was blowing and drifting. He heard a sound as of an engine letting off steam, but did not hear the sound of a bell or whistle.

The deceased’s brother, Frank Cahill,. testified that “when there is snow on the rails to amount to anything, you cannot hear the engines if they don’t open the exhaust or ring the bell, and an engine will run right up on you without your knowing it. I swept switches for five years, and I know that engines will slip up on yon while you are doing it when there is snow-on the ground, and you cannot hear them.” He also testified that in moving an engine at night from the roundhouse to the main track it was always the custom to have a switchman go with it, and that the switchman either went ahead of the engine or rode on the hind end of it as it backed out.

Rufus McCormick, the engineer, testified for the defendant that the whistle was blown three times before the engine was started east from the water tank, and that fireman Driscoll was with him on the engine. He further testified that Pat Freel, a switchman, had gone ahead of the engine to line up the switches, and that when Freel signaled to go ahead, witness responded with three sharp blasts of the whistle. In order to start the engine, he said, it was necessary to let off steam, and that the escaping steam makes a shrill noise which could be heard by a person standing off a distance of from fifty to a hundred yards. The testimony of the engineer was corroborated by fireman Driscoll, who also testified that the bell on the engine was kept ringing constantly as the .engine went through the yards. Both witnesses testified that there were two small electric lights in the cab of the engine and a’ headlight on the front end, but that there was no light on the hack of the tender, which pointed in the direction the engine was moving.

The testimony of Pat Freel, the switchman, was to the effect that he went ahead of the engine to line up the switches, and that when ready he gave the signal to hack up', and that he was answered by three blasts of the engine’s whistle; that oh his way toward the engine in the first instance, he passed a man, with a lantern, walking along the track in the direction he was going, and passed him again on his return from the engine, but he didn’t know who the man was.

There was a large number of instructions given on both sides, but the only instructions necessary to be considered in the case are the first and third, given for plaintiff, and the first and fifth, given at the instance of the defendant. Said instructions for the plaintiff are as follows:

“1. The court instructs the jury that under the law, in the absence of proof to the contrary, you will presume that at the time the plaintiff’s husband was struck and killed he was in the exercise of ordinary care on his part for his own safety. And if you believe from the evidence in the ease that on the morning of the fifteenth of February, 1903, at the town of Slater, Missouri, the said deceased was in the employ of the defendant Chicago & Alton Railway Company, in its railroad yards, and engaged in the business of sweeping snow from the switches and removing snow from the same in said yards so as to allow engines to safely pass over them, or at said time was upon said defendant’s ‘coming-out track,’ moving from one point to another about his said business, and that his presence upon said track, if the jury find he was so upon said track and so employed, was known to defendant, its agents or servants in charge of said engine No. 251, or could have been known to them by the exercise of ordinary care upon their part, and that the said agents or servants of said defendant backed said engine along said ‘coming-out track’ upon ■which said deceased was engaged in and about Ms business; and that the Said defendant, its agents and servants negligently, that is, without ringing the bell or sounding the whistle or other signal, backed said engine along said track and onto and against the said deceased, without fault on part of deceased, thereby killing' him, and that the said deceased was the husband of the plaintiff, then you will return a verdict for the plaintiff, and in the event of returning a verdict for the plaintiff you will find for her in the sum of five thousand dollars, no more nor no less, and the form of your verdict will be, ‘We, the jury, find for the plaintiff in the sum of five thousand dollars.’

“3. The court instructs the jury that if you believe from the evidence in the case that the husband of plaintiff was at the time he was struck and killed upon defendant’s ‘coming-out track’ engaged in and about the business of removing snow and ice from the switches, and if the defendant, its agents and servants in charge of said engine, knew that he was there so' engaged, or by the exercise of ordinary care upon their part could have known of the same, then it would have been negligence on the part of the said defendant, its said agents and servants, to back said engine out on said track, without warning or signal made to notify said deceased of the approach of said engine; and if you find that while said deceased was so engaged in his work, if you find he was so engaged, and that he was in the exercise of ordinary care on Ms part, the said defendant negligently backed said engine onto and against plaintiff’s husband, without sounding the whistle or ringing the bell or other warning, and thereby Mlled him, then the plaintiff is entitled to recover. ’ ’

The instructions given at the instance of the defendant, which are necessary to be considered in the ease, are as follows:

‘ ‘ 1. The court instructs the jury that the presumption is that at the time in question the defendant was in the exercise of ordinary care and that such presumption remains until overthrown by credible testimony to the contrary.

“5. The court instructs the jury there is no proof of the negligence of defendants or either of them in not having discovered the said James Cahill at or near the railroad track and in a position of peril in time by the exercise of ordinary care to have avoided injuring him. ”

Instruction numbered 1 given for plaintiff is challenged upon the ground that it amounts to a positive declaration to the jury that they must presume the deceased was in the exercise of due care at the. time he was killed. But this instruction means nothing more than, if the jury find from the evidence there is no proof to the contrary, that a presumption arises that the deceased was in the exercise of due care at the time he was killed. This presumption only obtains in cases where there is no evidence one way or the other as to how the accident happened. In this case there was no evidence as to how deceased came to his death, other than that he was run upon and killed by defendant’s engine. There was no eye-witness to the accident and how it occurred could only be shown by circumstantial evidence, if at all. Under such circumstances, the law will presume that deceased was in the exercise of due care at the time he was killed. The position and condition of the deceased would seem to indicate that he was struck by some one of defendant’s engines; but this was for the consideration of the jury. Defendant relies upon the case of Mockowik v. Railroad, 196 Mo. 550, as sustaining its contention that the court erred in the submission to the jury of the proposition that a presumption of due care on the part of the deceased at the time of the accident obtained, but we do> not think defendant’s contention is sustained by that case. On the contrary, it is an authority that such presumption obtains in this case. The court said: “Nor is this a case where the plaintiff was killed, so that what he knew and what he relied upon as controlling his conduct died with him, and hence could not be shown. In such a case as that, because of a presumption of a love of life and because of a presumption that a rational being would take ordinary care to avoid danger, the law in its blandness indulges other presumptions, and one of them is, that it will he presumed that the decedent trusted, as he had a right to trust, that the defendant was running its engine in obedience to speed ordinances, and that such decedent regulated his movements accordingly. [Hutchinson v. Railroad, 161 Mo. 1. c. 254, and cases cited; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Sullivan v. Railroad, 117 Mo. 214.] ”

Yarnell v. Railroad, 113 Mo. 570, is also relied upon by defendant company as supporting its contention. We quite’ agree, as was ruled in: that case, that negligence on the part of a carrier cannot be presumed ’ in favor of a person not a passenger from the mere fact of an accident and injury to such person, but must he proven; and although, undér the circumstances of this case, the’ law will presume, in the absence of anything showing to the contrary, that the deceased was in the exercise of due care at the time of the accident, it will not further be presumed that the injury was occasioned by the negligence or carelessness of the defendant, its servants or employees, for this would be building one presumption upon another, which the law does not permit. In other words, negligence upon the part of the defendant cannot be assumed from the fact that deceased will be presumed to have been in the exercise of due care at the time of his injury, but must be proved by the plaintiff to entitle her to a recovery.

It is held in Buesching v. St. Louis Gaslight Co., 73 Mo. 219, that the law presumes that the plaintiff, in an action to recover damages for injuries sustained at the hands of another, was at the time of the injury in the exercise of ordinary care. Slight circumstances, however, in the absence of direct evidence, may overthrow this presumption. [Weller v. Railroad, 164 Mo. 1. c. 198.] The same rule is announced in Railroad v. Gentry, 163 U. S. 353; Railroad v. Landrigan, 191 U. S. 461.

It is also urged against this instruction, that it is predicated upon the fact -that the presence of the deceased upon the coming-out track “was known to defendant, its agents or servants in charge of said engine, No. 251, or could have been known to them by the exercise of ordinary care upon their part, when there was no evidence tending to show that they, or either of them, knew of his presence there, or to show any fact from which the negligence of defendants, or either of them, might be deduced in failing to discover him upon the track in a position of peril. ” The evidence showed that it was not only the custom and rule of the company in moving the engine out on the main track from the “coming-out” track that some switchman should precede the engine, but that in fact some switchman “always does go” with it, and that he would either go ahead of the engine or ride the rear end of it as it backed out. It was also the custom of the company to send a sufficient forc¿ of men to the tracks in the yards in time of snow storms, as on the night of the accident, to clear the switches of snow, and the evidence showed that upon the night in question there were four men, including the deceased, engaged at this work, and being in the service of defendant company, the engineer must have known it. These faets, we think, authorized that part of the instruction under consideration.

Defendant objects to said instruction upon the further ground that it is inconsistent with instruction numbered 5 given for defendant, which instruction tells the jury that “there is no proof of the negligence of defendants, or either of them, in not having discovered the said James Cahill at or near the railroad track, and in a position of peril, in time, by the exercise of ordinary care to have avoided injuring him,” while the court, upon the part of the plaintiff, instructed the jury that if the presence of the deceased upon the coming-out track “was known to defendant, its agents or servants in charge of said engine No. 251, or could have been known to them by the exercise of ordinary care upon their part,” etc. The two instructions are not inconsistent. The jury might have found, under the evidence, that defendants knew, or by the exercise of ordinary care might have known, that the deceased was on the coming-out track, and still not be in a position of peril, and, even if he were, that there was no evidence tending to prove that defendants knew, or that they were negligent in not discovering his perilous position, in time to have avoided injuring him. Said two instructions relate to different matters; that is, the knowledge by defendants, or of facts from which they might have inferred, that deceased was upon the coming-out track at the time of the injury, and the absence of evidence tending to show that the defendants, or either of them, were negligent in not having discovered Cahill at or near the track, and in a position of peril, in time by the exercise of ordinary care to have avoided injuring him. Deceased might have been on the coming-out track, and in a position of peril, and at the same time defendants be not guilty of negligence in failing to discover his perilous position in time, by the exercise of ordinary care, to have avoided injuring him. The instructions, therefore, are not inconsistent, but in harmony with each other.

It is also insisted that plaintiff’s instruction numbered 3 is vicious in that it assumes as an undisputed fact that the deceased was struck and killed by engine No. 251 upon defendant’s coming-out track, which was one of the issues of fact in the case. This insistence is clearly without merit. In the first place, defendant company alleged in its answer that the injuries to the said James Cahill mentioned in the petition were caused by his own negligence and want of care at the time and under the circumstances described in the petition. In the next place, the evidence all tended to show that deceased was killed by an engine upon the coming-out track. While no person saw the accident, the circumstances all tended to show that he was killed in this way, and there was no evidence to the contrary. The assumption in an instruction of a fact about which there is no controversy, or in relation to which the evidence is clear and undisputed, will not be held to be error or prejudicial to the adverse party. [Carroll v. Railroad, 88 Mo. 239; Walker v. Kansas City, 99 Mo. 647; Burlington First National Bank v. Hatch, 98 Mo. 376.]

It is contended that defendant’s demurrer to plaintiff’s evidence should have been sustained, and the peremptory instruction asked by it to find for the defendant given. The circumstances connected with the accident, as shown by the evidence, tended to prove that Cahill was killed by engine 251. He had been working for the railroad company for about two years. It was his duty upon the night in cpiestion to sweep snow off of the switches, so that said switches might be thrown, and engines and cars pass from one track to another. In order to do this work it was necessary that he go between the tracks. He knew the exact time, or approximately so, that engine No. 251 would be backed out of the roundhouse in the morning for the purpose of pulling a passenger train called the “Hummer” from Slater to Kansas City, and which left Slater at 6:10 a. m. Yet, with this engine approaching, making the ordinary noise of an engine operated by its own steam, and running at a rate of speed not exceeding three miles an hour, he allowed himself to be struck by it. His vision or hearing was unimpaired, and he could, even when the engine was within ten feet of him, have stepped aside and avoided the collision. The deceased was an employee, and, therefore, the measure of duty to him was not such as to a passenger or stranger. It was as much his duty to look out for approaching engines and cars as it was the duty of defendants to look out for him and to avoid injuring him. There can be no escape from the conclusion that if he had been in the exercise of due care and had watched for his own safety, he would and could have avoided the injury. Even if the defendants were negligent in not discovering his position in time to have avoided the injury, he was clearly guilty of contributory negligence in failing to look for the approaching engine.

The case of Aerkfetz v. Humphreys, 145 U. S. 418, is, in its facts, very much like the case at bar. Mr. Justice Brewer, speaking for the conrt, said':

“There is little dispute in the testimony, and the facts, as disclosed, are plainly these: The Delray yard is in the western part of the city of Detroit. In it were twelve tracks and side tracks, and the yard was used for the making up of trains. A switch engine was employed therein, and, as might be expected, was constantly moving forward and backwards, changing cars and making up trains. Plaintiff was a repairer of tracks. He had been employed there about eighteen months, and was familiar with the manner in which the work was done. The yard was about a quarter of a mile in length. The tracks were in a direct line east and west, with nothing to obstruct the view in either direction. At the time of the accident plaintiff was working near the west end of the yard, when a switch engine pushing two cars moved slowly along the track upon which he was. at work, the speed of the engine being about that of a man walking. Plaintiff stood with his back to the approaching cars, and so remained at work without looking backward or watching for the moving engine until he was struck and run over by the first car. Upon these facts we observe that the plaintiff was an employee, and, therefore, the measure of duty to him was not such as to a passenger or a stranger. As an employee of. long experience in that yard, he was familiar with the moving of cars forward and backward by the switch engine. The cars were moved at slow rate of speed, not greater than that which was customary, and that which was necessary in the making up of trains. For a quarter of a mile east of him there was no obstruction;, and by ordinary attention he could have observed the approaching cars. He knew that the switch engine, was busy moving cars and making up trains, and that at any minute cars were likely to be moved along the track upon which he was working. With this knowledge he places himself with his face away from the direction from which cars were to be expected, and continues his work without ever turning to look. Abundance of time elapsed between the moment the cars entered upon the track upon which he was working and the moment they struck him. There could have been no. thought or ex- . pectation on the part of the engineer, or of any other employee, that he, thus at work in a place of danger, would pay no attention to his. own safety. Under such circumstances, what negligence ean.be attributed to the parties in control of the train or the management of the yard? They could not have moved the cars at any slower rate of speed. They were not bound to assume that any employee, familiar with the manner of doing business, would be wholly indifferent to the going and coming' of the cars. There were no strangers whose presence was to be guarded against. The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving forwards and backwards, would have simply tended to confusion. The person in direct charge had a right to act on the belief that the various employees in the yard, familiar with the continuously recurring movement of the cars, would take reasonable precaution against their approach. The engine was moving slowly, SO' slowly that any ordinary attention on the part of the plaintiff to that which he knew was a part of the constant business of the yard would have made him aware of the approach of the cars, and enabled him to step one side as they moved along the track. ’ ’ The opinion concludes as follows: “We rest our affirmance of the judgment upon the grounds that under the circumstances there was no negligence on the part of the defendant, and that the accident occurred through a lack of proper attention on the part of the plaintiff.”

Riccio v. Railroad, 189 Mass. 358, was a suit to recover damages for the death of a railroad employee, the circumstances being similar to those in this case. The court said:

“This is an action to recover damages for injuries resulting in the death of one Bianco, the plaintiff’s intestate. At the trial it appeared that about 5:30 o’clock in the afternoon of January 2, 1904, Bianco, while at work shoveling snow in the large freight yard of the defendant at New Haven, in the State of Connecticut, was struck by a locomotive engine and mortally hurt. Snow had been falling all that day, and at the time of the accident was still falling. The wind was blowing and it was dark. -The evidence tended to show that Bianco had performed similar work there the preceding winter, bnt it does not appear that he had worked during the winter in question before the day of the accident. On this day he began about ten o’clock in the morning and worked up to the time of the accident. We see no negligence on the part- of the defendant. The plaintiff knew that he was at work in a railroad yard where trains and engines are frequently passing. There was no undertaking on the part of the defendant to give him warning, but he was expected to look out for himself. If the engineer failed to sound the whistle or ring the bell, it was not negligence for which the defendant was responsible. Both by the common law and by the law of the State of Connecticut, as we understand it to be under the decisions of that State which were put in the case as evidence, there is no evidence of negligence of the defendant. [Morris v. Railroad, 184 Mass. 368, 68 N. E. 680; Whittlesey v. Railroad, 77 Conn. 100, 58 Atl. 459, and cases cited.] ”

To the same effect is Lynch v. Railroad, 159 Mass. 536. The following cases are also in point: Clancy v. Railroad, 192 Mo. 615; McGrath v. Railroad, 197 Mo. 97; Evans v. Railroad, 178 Mo. 508; Loring v. Railroad, 128 Mo. 349; Sharp v. Railroad, 161 Mo. 214;. Ring v. Railroad, 112 Mo. 220.

Our conclusion is that there was no negligence shown upon the part of the defendant, and that the accident occurred through the want of proper attention on the part of the deceased.

The judgment is reversed.

All concur.