Cook v. Hannibal & St. Joe. R. R. , 63 Mo. 397 ( 1876 )

Napton, Judge,

delivered the opinion of the court.

The petition in this case is as follows : “ Plaintiff states that on the 10th of July, 1872, he owned a team of mules and a wagon, worth $500 ; that on or about said date said team was engaged in hauling and depositing rock, under the supervision and directions of defendant, which rock was used by defendant in rip-rapping the bank of the Missouri river., and the said defendant, by its agents and servants so engaged in supervising and directing said work of rip-rapping and hauling, then and there willfully, wrongfully and negligently directed the driving of and conducting of said mules and wagon of plaintiff, so engaged; that by said direction and command said defendant caused said mules and wagon to be precipitated into the Missouri river, where they were lost, whereby plaintiff has suffered damage to the amount of five hundred dollars, for which, and costs, he prays judgment."

A demurrer to this was filed and overruled, and by leave an answer was filed, containing a general denial of every allegation of the petition, and a specific allegation of contributing negligence on the part of the plaintiff.

As the main point in this case arises from a demurrer to the evidence of plaintiff, its tendency must be stated in substance, The defendant was rip-rapping the Missouri river at the place or near where this accident occurred. Mr. Bartley was then superintendent of the work. His business was, of course, to make the workmen under his control put the rock in the places needed. He was the person to determine wher-e they-were needed.. The rock was hauled under a contract between.the defendant and McNamara and Kelly, and the plaintiff was a subcontractor under McNamara and Kelly, and the man who drove the wagon was a servant of plaintiff.

The evidence tended to show that there was a crack on the bank of the river, about 6 inches wide, and some 10 or 15 feet from the edge of the bank, which alarmed several of the teamsters employed in hauling rock by McNamara ; that the orders of defendant’s superintendent Bartley, to them to drive out between the crack and the edge of the bank were not regarded, and disobeyed by several of the teamsters, -because they considered it very unsafe to do so ; that this crack had been filied up with sawdust, sand and dirt under direction of superintendent Bartley, and the plaintiff’s servant, who, on approaching this fissure, expressed apprehensions.,but was ordered peremptorily by Bartley to drive up ; that there was no danger; that “we,” — the company— were responsible. It appeared that the servant obeyed the orders of Bartley, and his team was “ stalled” on the dirt, sand and sawdust, and whilst engaged in unloading, the team and wagon and driver were all precipitated into the river by the caving in of the bank.

Several witnesses testified that the fissure was perceptible to every one, but was covered over before the driver of plaintiff’s wagon approached on the day of the accident. There was evidence to the contrary given by defendant.

No instructions were asked or given in the case, so far as the record shows. The verdict of the jury was $542.33. There was a motion for a new trial, and in arrest, which was overruled.

The only questions presented are therefore, whether the petition stated a cause of action, and whether the demurrer to the plaintiff’s evidence should have been sustained.

We see no objections to the petition. It is substantially stated that the defendant was engaged in the rip-rapping on the river, and had a superintendent to direct and oversee the work, and that the plaintiff was engaged in hauling rock under the direction and supervision of this agent of the defendant, and that, whilst so engaged, the loss occurred by reason of the negligence of the superintendent.

In regard to the evidence, if there was any, tending to establish the allegations of the petition, the court had no authority to withdraw the case from the jury.

The only ground upon which the testimony could be objected to, is that the plaintiff was a sub-contractor under Kelly and McNamara, in hauling rock for this work. It is not shown what the precise contract between the company and Kelly and McNamara was, nor is it shown whether it was in writing or not. It appears, however, that they contracted to haul and deliver rock to be used in this work, placed under the superintendence of ‘ Bartley. There could be no question that Bartley had control over the men he hired to put the rock in the river or on the bank, after it was hauled, and I do not see how this work could be accomplished, unless he had a like control over the teamsters in regard to the point where the rock was to be delivered. He was superintendent of the work,, and the work required two things as essential to its accomplishment: laborers to place the rock in such positions as he thought advisable, and teamsters to put the rock, when hauled, in such places as would be convenient to these laborers. Each class of laborers would seem to have been under his control and orders. The very nature of his employment implied such control. There was evidence to show that he had such control, and that he exercised it in the case of the plaintiff’s servant. There is nothing to show on what terms these laborers of either class were employed ; but there was evidence to show that the superintendent of defendant had entire control over the work, and, consequently, of the laborers engaged in it.

Whether the place occupied by plaintiffs servant, who was a negro driver, was apparently a dangerous place, and so known to Bartley, the superintendent, and not so known to the servant, driver of plaintiff, whether the filling of the fissure by sawdust and sand, etc., was designed to hide the danger of driving between it and the river from the teamsters, or whether the danger was equally open to the observation of both superintendent and driver, are questions of fact upon which there was evidence, but upon which there were no instructions given by the court. There was certainly evidence tending to show gross negligence on the part of the superintendent, and whether it was satisfactory or not'was a matter for the jury.

There is no question that the superintendent, Bartley, represented the defendant, and that the plaintiff’s driver was not a fellow-servant within the rule on that subject. (See Whalen vs. Centenary Church, 62 Mo. 326.)

We think the demurrer to the evidence Was properly overruled, but the judgment, being for a sum exceeding that claimed in the petition, must be reversed, and the case will be remanded to the circuit court of Jackson county, with directions to enter a judgment for the sum claimed in the petition, and costs, upon a remittitur being entered for the excess in the verdict.

The other judges concur.