Bequette v. Plate Glass Co.

the said instruction incorrectly states the law to be that the respondent, under the circumstances in question, had a right to rely upon the foreman's keeping a lookout for him. (d) Because said instruction does not require a finding that it was the duty of respondent's foreman to keep a lookout for and warn the men of approaching dangers, but merely a finding that he was authorized so to do. (6) The court erred in refusing to give Instruction B at the instance of appellant. Where a petition contains certain charges of negligence and the testimony does not sustain or tend to sustain them, it is the duty of the trial court, when requested by the defendant, to instruct the jury that there is no testimony to sustain such charges and that the plaintiff cannot recover on such charges. Chrismer v. Bell Telephone Co., 194 Mo. 189. (7) The court erred in refusing to give Instruction D at the instance of appellant. (8) The court erred in refusing to give Instruction E at the instance of appellant. Chrismer v. Bell Telephone Co., 194 Mo. 189. (9) The court erred in refusing to give Instruction F at the instance of appellant. (10) The court erred in refusing to give Instruction G at the instance of appellant. The allegations of the plaintiff's petition are taken to be true as against plaintiff for the purposes of the case. He cannot recover on a contrary theory. State v. Brooks, 99 Mo. 137; Chitty v. Railroad, 148 Mo. 64; Hensler v. Stix, 108 Mo. 238; Mueller v. La Belle, 109 Mo. App. 506; Adulff v. Columbia Pretzel Co., Cheltz v. Railroad, 148 Mo. 64; Yarnell v. Railroad, 113 Mo. 570; Waldner v. Railroad, 71 Mo. 514; Melvin v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572; Price v. Railroad, 72 Mo. 414; Standard Milling Co. v. Transit Co., 122 Mo. 277; Hite v. Railroad, 130 Mo. 136; Mason v. Railroad, 75 Mo. App. 10.

Safford & Marsalek for respondent.

(1) The court rightfully refused to give the peremptory instruction offered by defendant Pittsburgh Plate Glass Company at the close of all the evidence.

Bequette v. Plate Glass Co.

Jordan v. Transit Co., 202 Mo. 418; Gannon v. Gas Co., 145 Mo. 502, 511; Spaulding v. Railway Co., 129 Mo. App. 607; Grain Co. v. Railroad, 182 Mo. App. 339, 342; Morgan v. Sunflower Zinc Co., 199 S. W. 590, 592. Under the testimony in this case, plaintiff is entitled to judgment against Pittsburgh Plate Glass Company. (1) Every fact favorable to plaintiff which the evidence tends to prove, though but in the slightest degree, must be taken as admitted by an instruction in the nature of a demurrer to the evidence, and every inference arising from such facts in plaintiff's favor should be drawn. Hall v. Coal & Coke Co., 260 Mo. 351, 365; Maginnis v. Railroad, 268 Mo. 667, 675; Bender v. Railway Co., 137 Mo. 240; Moore v. Railway Co., 73 Mo. 439; Field v. Railway Co., 46 Mo. App. 449; Wilkerson v. Railway Co., 26 Mo. App. 144; Thornsberry v. Ry. Co., -Mo.-, 178 S. W. 197, 200. (2) Keevin was in the employ of Pittsburgh Plate Glass Company, and was authorized to instruct plaintiff where, when and how to perform his duties to Pittsburg Plate Glass Company, and it was his custom to keep a lookout for approaching danger while in charge of the crew of Pittsburgh Plate Glass Company repairing tracks, and to warn the crew, of which plaintiff was a member, of approaching danger, and Keevin instructed plaintiff in repairing the tracks of Pittsburg Plate Glass Company to assume the position he occupied when he was injured, and did not countermand the instruction, although it was his duty to do so by warning, for he could by the exercise of ordinary care have discovered that the cable was about to move and injure Bequette, and that by reason thereof the premises where Bequette was working were not reasonably safe, and his duty to countermand his instruction by warning is a non-delegable duty, and for his negligence in failing to perform such non-delegable duty of the master, under the circumstances, his master Pittsburgh Plate Glass Company, is liable. Johnson v. Coal Co. et al., 205 S. W. 615; Hutchinson v. Safety Gate Co., 247 Mo. 71, 115; Koerner v. St. Louis Car Co., 209 Mo. 141, 157; Fogarty

Mo.,

Bequette v. Plate Glass Co.

v. St. Louis Transfer Co., 180 Mo. 490; Miller v. Mo. Pac. Ry. Co., 109 Mo. 350, 357; Hoke v. Railroad, 88 Mo. 360; Dowling v. Allen, 88 Mo. 295; Moore v. Railroad, 85 Mo. 588; White v. C. R. I. & P. Ry. Co., 156 Mo. App. 563; Hagan v. Mining Co., 131 Mo. App. 390; Smith v. American Fdy. Co., 122 Mo. App. 610-616; Bien v. St. Louis Transit Co., 108 Mo. App. 399; Cox v. Granite Co., 39 Mo. App. 424, 429; Weaver v. Railroad, 170 Mo. App. 289. (3) The fact that the place where plaintiff was required by Keevin's order to work was under the control of a third person could not relieve defendant of its duty to plaintiff to exercise ordinary care to make and keep the place reasonably safe for the work plaintiff was required to perform. Clark v. Foundry Co., 234 Mo. 436; Bidwell v. Grubb, 201 S. W. 579; Greenstein v. Christopher Simpson, etc., Co. 178 S. W. 1179, 1181-2; Clark 1179, 1181-2; Clark v. Goebel Const. Co. 204 S. W. 65, Murch Bros. Const. Co. v. Johnson, 203 Fed. 1, 121 C. C. A. 353; Herdler v. Stove & R. Co., 136 Mo. 3; Sackewitz v. Biscuit Co., 78 Mo. App. 144; Jackson v. Butler, 249 Mo. 342; Mullery v. Tel. Co., 180 Mo. App. 129; Id. 191 Mo. App. 124. (4) Duty to warn is part of the duty to keep the place reasonably safe. Koerner v. St. Louis Car Co., 209 Mo. 141, 157; Hutchinson v. Safety Gate Co., 247 Mo. 71, 115; Johnson v. T. & T. Co., 99 N. Y. S. 375. 113 App. Div. 762; Felice v. N. Y. N. H. & H. R. Co., 43 N. Y. S. 922, 14 App. Div. 345. (5) Keevin, by exercising ordinary care, might have discovered that the cable was about to be moved. He knew that the car would be pulled up within a short time after it was let down, and that a signal would be given before it was moved up, but he negligently failed to look in the direction of the car after it was let down, although he had ample opportunity to see the signal, which was given, in time to warn plaintiff. Weaver v. Railroad, 170 Mo. App. 284, 287; Cox v. Granite Co., 39 Mo. App. 424. Lilly v. Menke, 143 Mo. 137, 146-7; Bushnell v. Ins. Co., 91 Mo. App. 528. (7) Defendant cannot escape liability for Keevin's negligence in failing to discover the danger

Bequette v. Plate Glass Co.

and warn plaintiff on the theory that Keevin rightfully relied on the employees of the Sand Company to give warning to him and his crew. Giardina v. Railroad, 185 Mo. 330; Turner v. Hannibal, etc., 74 Mo. 603, 607; Paul v. Railroad, 152 Mo. App. 577, 586; Grand Trunk Ry. Co. v. Baird, 94 Fed. Rep. 946; Lenix v. Railroad, 76 Mo. 86, 91; Davies v. Railroad, 159 Mo. 1, 6-7. Lord v. Delano (Mo.), 188 S. W. 93, 95; 29 Cyc, 551; Fechley v. Traction Co., 119 Mo. App. 358, 367; Marsh v. Railroad, 104 Mo. App. 577, 587. Johnson v. Coal Co. et al., Mo., 205 S. W. 615; Weaver v. Railroad, 170 Mo. App. 284, 287; Clark v. Goebel Const. Co., 204 S. W. 65; Hutchinson v. Safety Gate Co., 247 Mo. 71, 115; Gray v. Coal Co., 175 Mo. App. 421; Sackewitz v. Biscuit Co., 78 Mo. App. 144; Koerner v. Car Co., 209 Mo. 141, 157; Welsh v. City, 73 Mo. 71; Russell v. City, 74 Mo. 480; Richmond Granite Co. v. Bailey, 92 Va. 554, 24 S. E. 232; Miller v. Railroad, 109 Mo. 357; (8) Keevin's opportunity to observe the signal given by Stackley was superior to plaintiff's. The duty to exercise active vigilance was upon him, for he was untrammeled by instruction or necessity, while plaintiff, by Keevin's instruction, was required to use his strength to nip the tie, keep his eye on the driving of the spikes, and concentrate his attention on the job. Jourdan v. Transit Co., 202 Mo. 418; Gessley v. Railroad, 32 Mo. App. 418; Weaver v. Railroad, 170 Mo. App. 289. (9) The testimony shows facts sufficient to induce plaintiff to rely upon the assurance flowing from defendant's instruction that the place was, and while plaintiff was engaged in nipping the tie would remain, a reasonably safe place to work; and sufficient to induce him to believe that his foreman, Keevin, in compliance with a well-established custom, would keep a lookout for, and warn him of, approaching danger while he, in compliance with the instruction, riveted his attention upon work which required it. Lancaster v. Railroad, 143 Mo. App. 164; Moore v. Railroad, 85 Mo. 588; Hough v. Power Co., 41 Oregon 531, 65 Pac. 655; Speed v. Railroad, 71 Mo. 303, 311; Richmond Granite Co. v. Bailey, 92 Va. 554, 24 S. E.

200 M. A.-33

Bequette v. Plate Glass Co.

232; Coffeyville Vitrified Brick Co. v. Shanks, 76 Pac. 856; Anderson v. Mill Co., 42 Minn. 424, 44 N. W. 315; Anderson v. Railroad Co., 30 Pac. 305; Erickson v. Railroad, 41 Minn. 500, 43 N. W. 332; Fitzgerald v. International Flax Co.. 104 Minn. 138, 116 N. W. 47; Labatt, Master and Servant (2 Ed.), sec. 1112; Labatt, Id., sec. 1271; Weaver v. Railroad, 170 Mo. App. 289. (10) Bequette was not justified in refusing to obey the instruction of Keevin, for Keevin was authorized by Pittsburgh Plate Glass Company to give the instruction. Bequette did not know the cable was about to move, for his strength and attention necessarily were concentrated on the nipping of the tie. To justify an employee in refusing to obey an instruction of the master he must not only have knowledge of physical conditions but also of the danger arising therefrom. Clippard v. Transit Co., 202 Mo. 447; Hamman v. Coal & Coke Co., 156 Mo. 232; Pullman Car Co. v. Harkins, 55 Fed. 932; George Mathews Co. v. Bouchard, 8 Quebec Q. B. 550. (11) And to justify Bequette in refusing to obey Keevin's instruction and rely upon the implied assurance of safety arising therefrom, the danger would have had to be so glaring and imminent that no ordinary, careful and prudent person of his age, experience and knowledge, would have obeyed. Schroeder v. C. &. A. Railway Co., 108 Mo. 332; Stephens v. 332; Stephens v. Railway 96 Mo. 212; Conroy v. Vulcan Iron Works, 62 Mo. 35; Lawrence V. Heidbretter Ice Ice Co., 119 Mo. App. 326; Robertson v. Hammond Co., 115 Mo. App. 524; Thompson on Negligence (2 Ed.), secs. 5378-79. (12) It was not negligence on Bequette's part for him to rely upon Keevin to give him warning of the movement of the cable. When the servant is working under the direct supervision of a vice-principal, the servant and the vice-principal are not on the same plane. The servant is warranted in relying upon the exercise of diligence by master, and it is the master's duty to exercise active vigilance to observe and warn the servant of impending danger. Page v. Power Co., 139 Mo. App. 538; Bane v. Irwin, 172 Mo. 316-17; Combs v. Const. Co.,