instruction should not be so worded as to make it "inclined to be argumentative." State v. Hendricks, 172 Mo. 654, 668, 73 S. W. 194. All that defendant was entitled to in this instruction was a clear, simple statement as to where the burden of proof lay concerning the issue involved.

The judgment is reversed, and the cause is remanded for a new trial. All concur.

MORIN V. RAINEY et al. (No. 15304.)

was all of a character that would excite the prejudice and contempt of the jury, and, though throwing no possible light on the single issue involved, was exceedingly prejudicial. It is true this fact was not stated in the objection, but to have given that as an additional reason would have suggested and emphasized the prejudicial matter, and left a poisonous influence in the minds of the jury, even if the objection had been sustained and the evidence excluded. Plaintiff's counsel gave several good, and in this instance obvious, reasons why the evidence should not have been allowed. It was inadmissible, because not relevant in any degree or under any possible view. That, on account of our being (St. Louis Court of Appeals. Missouri. Jan. at war, it would arouse antagonistic feelings in the jury, born of their patriotism, is not a statement of the legal rule forbidding its admissibility, but is the thing which made the error of admitting this irrelevant and wholly immaterial testimony very prejudicial. Likewise the fact that plaintiff may have been a theoretical rather than a practical farmer, and that his attempts at farming may have been amusing to one not impressed by, or in sympathy with, the new theories as to "dry farming," threw no light on the case, except to place plaintiff in a ridiculous light before the jury.

[7-9] Defendant's instruction No. 2 is, we think, justly subject to criticism and was erroneous. It told the jury that the burden of proof was on plaintiff to show by the greater weight of the evidence that on or about July 26, 1917, he was the owner of an interest in the growing crops, that on or about that date he agreed to sell them to defendant for $100, that the defendant at said time agreed to buy said crops at said price, and that possession of plaintiff's interest therein was then and there delivered by him to the defendant and accepted by the latter, and that, unless the plaintiff had proved all of the foregoing facts by the greater weight of the evidence as aforesaid, then the verdict must be for defendant. This instruction not only told the jury that the burden was on plaintiff to prove a fact that was in reality conceded by defendant, but the instruction was so worded as to be argumentative in tone, and as to create the impression that, in addition to the agreement to sell and buy the crops at $100, something else must be done in the way of the transmission or delivery of possession of the crops to defendant. They were growing on his farm and were already in his possession, and no form or ceremony of delivery had to be gone through with to complete the contract of sale if one were made. The instruction

was prejudicial to plaintiff's rights. Weidemeyer v. Woodrum, 168 Mo. App. 716, 723, 154 S. W. 894. He was clearly handicapped by it. Stauffer v. Metropolitan St. Ry. Co., 243 Mo. 305, 333, 147 S. W. 1032. An

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7, 1919. On Motion for Rehearing,
Jan. 22, 1919.)

1. MASTER AND SERVANT 189(3)

PRINCIPAL FOREMEN.

VICE

Though plaintiff and the servant who controlled the movement of electrically operated trucks which were joined together and ran on a narrow gauge track worked under a common foreman, if plaintiff was required to obey the directions of the operator as to moving pots on the trucks, such operator was a vice principal as to such directions.

2. MASTER AND SERVANT ←201(10) — VICE PRINCIPAL-NEGLIGENCE-CAUSE OF INJURY.

Where a servant, who controlled the movements of electrically operated trucks and whose orders plaintiff was bound to obey, directed plaintiff to perform work which required him to stand on the track between trucks, and while plaintiff was in that position the operator started the trucks, held, though the operator occupied a dual capacity, being a vice principal as to directions and fellow servant as to operating the trucks, plaintiff's injuries did not solely result from the negligent act of the operator in his capacity as a fellow servant. 3. MASTER AND SERVANT 313-INJURIES — NEGLIGENCE-JOINT LIABILITY.

Where the negligence of the master combined with that of a fellow servant produces an injury the negligence of neither being the sole efficient cause, both the master and fellow servant are liable, and the injured servant may sue either or both.

4. MASTER AND SERVANT

185(23)-DUTY OF

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

MORIN v. RAINEY

Where negligence of a vice principal, who controlled the movement of electrically operated trucks, which were started, injuring plaintiff, was relied on, an instruction requiring the jury to find such vice principal could have discovered the trucks were about to be moved, of which there was no evidence, held not prejudicial to the master, where the evidence showed that plaintiff immediately obeyed the vice principal's order, and the trucks were immediately started.

859 IN- western wall of the building, and near this track, there was a larger container termed a "ladle," containing molten iron. operation of a lever situated upon the platBy the form mentioned above, this ladle could be "tipped" so that molten iron could be poured from it into the pots upon these trucks, from time to time, as they were successively stopped in the proper position opposite the ladle. The defendant Rainey, a colored employé of the defendant American Car & Foundry Company, and who then had been in its employ about 14 years, stood upon this platform mentioned, and by means of the controller and the lever operated these trucks and this ladle; that is to say, he would cause the trucks carrying these empty pots to be run toward the north and would stop each truck, by means of the controller, in front of the

On Motion for Rehearing. 7. MASTER AND SERVANT ➡286(27)—INJURIES TO SERVANT-JURY QUESTION.

In a servant's action, the question of the negligence of a vice principal, under whose orders plaintiff went between electrically operated trucks, held for the jury.

Appeal from St. Louis Circuit Court; Wil- ladle, and would then operate the lever, causliam M. Kinsey, Judge.

"Not to be officially published."

Action by Tony Morin against Spencer Rainey and the American Car & Foundry Company. From a judgment for plaintiff, the last-named defendant appeals. Affirmed. Watts, Gentry & Lee, of St. Louis, for appellant.

Safford & Marsalek, of St. Louis, for respondent.

ALLEN, J. This is an action to recover damages for personal injuries sustained by plaintiff on September 4, 1912, while in the employ of the defendant American Car & Foundry Company as its servant, and alleged to have been sustained through the negligence of defendants. The trial below, before the court and a jury, resulted in a verdict for plaintiff against both defendants in the sum of $5,000, and the defendant American Car & Foundry Company has appealed.

Plaintiff was employed in the foundry of the defendant company in the city of St. Louis. He worked in a building about 200 feet square in which molten iron was handled in the process of manufacturing car wheels. Extending along the western side of this room was a narrow gauge track, upon which were operated, by electricity, a series of small, low trucks, joined together by chains or rods. Upon each of these trucks was placed a heavy pot which, at times, was filled with molten iron. At the western wall of this building or room, and between the wall and this track, there was an elevated platform upon which stood the operator who controlled the movements of these trucks by turning the power on and off by means of a "controller" similar to that used by a motorman in operating an electric street car. short distance north of this platform, at this

A

ing the ladle to tip and pour molten iron into the pot. When the pot was filled, he would, by means of the lever, cause the ladle to be raised to its original position, and would then operate the trucks forward, causing another to stop at the ladle. When the trucks, carrying the pots thus filled with molten toward the north end of the building, the pots metal, were thus conveyed a certain distance of metal were lifted therefrom by means of a chain attached to a crane, and were thus carried to the various places where the molthe molten metal. When thus emptied, each ders had prepared "forms" to be filled with pot was, by the crane, returned to one of the trucks; and, when all had thus been emptied and returned to the trucks, the entire string of trucks was run back toward the south end of the building, and the process of filling the pots began again.

It frequently happened that when one of these hot, empty pots was returned to a truck by the crane, it would not be placed precisely in the proper position thereon, and it became necessary that it be moved a little. The pots were too hot and too heavy to be moved or adjusted by hand, and this was done by means of a crowbar, by a workman assigned to this work.

When plaintiff was employed by the defendant company, he was put to work at skimming molten iron in large receptacles in this room. After doing this work for a week, he was assigned the duty of adjusting these pots with a crowbar. He is a Croatian unfamiliar with the English language, and gave his tes timony through an interpreter. He testified that he was called from his other work by defendant Rainey; that the foreman of defendant company then came and made him understand that he was to adjust the pots (which work he had seen another workman doing), in accordance with the directions given

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

If

him, from time to time, by Rainey from the ( that, under the evidence and the stipulation, platform. It appears that at times another Rainey was not a vice principal but a mere negro occupied the platform and operated the fellow servant with plaintiff. To this we controller and the lever. And in a deposition cannot accede. It is true that plaintiff and of plaintiff, read at the trial by defendant's Rainey worked under a common foreman, but counsel in lieu of further cross-examination, Rainey was given power and authority to plaintiff testified, in substance, that he was direct plaintiff in his work and to control required to obey whichever negro operator his movements; and plaintiff was required was thus on duty and to do whatever the op- to obey Rainey's directions or orders. erator told him to do. And at the trial the one servant is clothed with power and aufollowing stipulation entered into by counsel thority to direct and control other servants, was read to the jury, viz.: or another servant, in the performance of some branch of the master's work, the master is liable for negligence on the part of such superior servant in the exercise of such power and authority conferred upon him. That this doctrine is fully recognized and established in this state will appear by reference to a few of the many cases which might be cited in support thereof. See Moore v. Railroad, 85 Mo. 588; Schroeder v. Railroad, 108 Mo. 322, 18 S. W. 1094, 18 L. R. A. 827; Miller v. Railroad, 109 Mo. 350, 19 S. W. 58, 32 Am. St. Rep. 673; Bane v. Irwin, 172 Mo. 306, 72 S. W. 522; Burkard v. Rope Co., 217 Mo. 466, loc. cit. 482, 117 S. W. 35; English v. Rand Shoe Co., 145 Mo. App. 451, 122 S. W. 747; Mertz v. Rope Co., 174 Mo. App. 94, 156 S. W. 807; Jorkiewicz v. Brake Co., 186 Mo. App. 534, 172 S. W. 441.

"It is hereby stipulated and agreed that when plaintiff received injuries on the occasion mentioned in his petition, and for several days theretofore, it was the duty of defendant Spencer Rainey, then in the employ of defendant American Car & Foundry Company, to instruct plaintiff herein as to when, where and how he should place in position pots upon trucks then and there operated by defendants." Plaintiff had been engaged in this work about a month when injured. It appears that Rainey communicated with plaintiff from the platform by motioning with his hand; i. e., when it was necessary to move a pot upon one of the trucks, Rainey would indicate, by a motion of his hand, the direction in which it was to be moved, and plaintiff would move it accordingly with his crowbar. And if Rainey intended to move the trucks when plaintiff was in a position to be endangered thereby, it was his custom to call to plaintiff to "look out," a warning which plaintiff understood.

In Burkard v. Rope Co., supra, 217 Mo. loc. cit. 482, 117 S. W. 41, referring to the rule enunciated in Moore v. Railroad, supra, it is said:

Accordingly to the evidence for plaintiff, just prior to his injury he was east of the tracks upon which the trucks were operated when he was directed by Rainey to adjust one of the pots, and he thereupon immediately undertook to do so. For this purpose it was necessary for him to go upon the track, between two of the trucks, and he accordingly did this. As soon as plaintiff had taken this position and had begun to adjust the pot, Rai-rection, or control, the master is liable." ney, without warning to plaintiff, operated the controller and caused the trucks to be moved forward, whereby plaintiff was thrown to one side and his leg caught between the truck and a post, causing his leg to be so badly crushed that amputation became necessary. According to the testimony of Rainey, defendants' only witness, plaintiff was injured by reason of going upon the track without being told to do so, and without the knowledge of the witness. For our purposes this testimony need not be stated in detail.

who, under the direction and management of "It is ruled that they are fellow servants the master himself, or by some servant placed by the latter over them, are engaged in the prosecution of the same common work, and without any dependence upon or relation to each other except as colaborers without rank, and that he is a vice principal who is intrusted by the master with power to superintend, direct, or control the workman in his work, and that for negligence in such superintendence, di

[1] It is insisted by appellant's learned counsel that the trial court erred in refusing to peremptorily direct a verdict for defendant company. Plaintiff's case proceeds upon the theory that, in respect to giving directions or orders to plaintiff, defendant Rainey was a vice principal of his codefendant, appellant here. It is argued for appellant, however,

[2, 3] But it is earnestly contended that, conceding arguendo that, with respect to his authority and duty to direct and control plaintiff in his work, Rainey was a vice principal, nevertheless with respect to his duties in starting and stopping the trucks, and in tipping the ladle, he was a fellow servant with plaintiff; and that plaintiff's injuries were caused by negligence on the part of Rainey in the latter's capacity of fellow servant. And in this connection many cases are cited and quoted from which we deem it unnecessary to discuss. The "dual capacity doctrine" has long been recognized in this state. And it has long been settled that, where one servant is injured by the negligent act of another servant occupying a dual capacity, it is the character of the act, and not the rank of the servant, that determines the

question of the master's liability for such plaintiff went upon the track between these i negligence. See English v. Rand Shoe Co., trucks, he did so, not of his own initiative, supra, 145 Mo. App. loc. cit. 450, 122 S. W. but in obedience to the express command of 747 and cases there cited. It may be quite the master, then and there issued by the vice true (and respondent concedes it to be) that principal Rainey; and, having thus sent Rainey occupied a dual capacity; that as op- plaintiff into this position to perform the erator of the controller and the lever he was work in question, it became the personal, a fellow servant with plaintiff, while as one nondelegable duty of the master to exercise clothed with authority to direct plaintiff's ordinary care to keep safe the place where movements he was as to plaintiff a vice prin- plaintiff was thus required to work. And cipal. We do not agree, however, that plain- plaintiff was entitled, within reason, to rely tiff's injuries resulted alone from a negligent upon the implied assurance that this duty act of Rainey in his capacity as a fellow serv- would be performed. This is a duty which ant. the master cannot shift to or put upon others so as to exculpate himself from liability when an injury happens by reason of its nonperformance. And if the master deputizes the performance of such duty to a servant, no matter how low the latter may be in rank or the scale of employment, as to that duty the acts of such servant became, in law, the acts of the master. See Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292; White v. Montgomery Ward & Co., 191 Mo. App. 268, 177 S. W. 1089; Chulick v. American Car & Foundry Co., 199 S. W. 437; Zellars v. Missouri Water Co., 92 Mo. App. 123, et seq. In this view, the negligence of Rainey in rendering unsafe the place where plaintiff was expressly required to work at the time was, in law, the negligence of the master, casting liability upon the latter for the consequences thereof.

The argument advanced by appellant is, in short, that the order given by Rainey to plaintiff to move the pot on the truck was not a negligent order, but a perfectly proper one; and that plaintiff's injury was caused solely by the subsequent negligence of plaintiff, as a fellow servant, in prematurely setting the trucks in motion. But we think that this argument will be found unsound when all of the facts of the case are considered. It is true that it was not negligence on the part of Rainey, as vice principal, to order plaintiff to adjust the pot, but it was negligence on his part in such capacity to fail to warn plaintiff that the trucks were about to be moved. Having, by virtue of the authority conferred upon him, ordered plaintiff into this position, if indeed Rainey intended to set the trucks in motion, it was his duty to direct plaintiff to withdraw from such dangerous position, or to give him suitable warning in some manner. We think that it will not do to say that there was no negligence on the part of Rainey as vice principal which contributed to the injury, when in fact Rainey, clothed with the authority of the master, sent plaintiff into this place, and while holding him there in the performance of the master's orders sent the trucks forward, injuring him. In our view of the facts, plaintiff's injury was due to the negligence of Rainey as a vice principal (the master's negligence) combined with his negligence as a fellow servant. And it is well settled that, when the negligence of the master is combined with that of a fellow servant in producing the injury, the negligence of neither being the sole, efficient cause, both the master and the fellow servant are liable, and the injured servant may maintain his action against either or both. Bluedorn v. Railway Co., 108 Mo. 439, loc. cit. 448, 18 S. W. 1103, 32 Am. St. Rep. 615; Browning v. Railway Co., 124 Mo. 55, 27 S. W. 644; Radtke v. Basket & Box Co., 229 Mo. loc. cit. 23, 129 S. W. 508; Rigsby v. Oil Well Supply Co., 115 Mo. App. loc. cit. 314, 91 S. W. 460; Mertz v. Rope Co., supra.

[4] But there is another view of the case which in our judgment leaves no room for doubt as to the liability of defendant. When

We think that the demurrer was well ruled. [5] Complaint is made of plaintiff's first instruction, which is as follows:

"The court instructs the jury that if you find from the evidence in this case that on the 4th day of September, 1912, in the city of St. Louis, Mo., defendants were engaged in operating the railroad, cars, and pots mentioned in evidence, and that plaintiff and Spencer Rainey were then in the employ of defendant American Car & Foundry Company, and that said fendant American Car & Foundry Company Rainey was then and there authorized by dethen and there to operate said cars and pots and to instruct, that is to say, to direct or order plaintiff where, when, and how he should perform his duties to defendant American Car & Foundry Company, and that he then and adjust one of said pots upon one of said cars, there so instructed plaintiff to then and there and thereby required and caused plaintiff then and there to go upon said track between two of said cars and adjust said pot, and that said Spencer Rainey then and there, by the exercise said cars were then about to move and were of ordinary care, could have discovered that likely, by reason thereof, to strike and injure plaintiff, and then and there negligently failed to warn plaintiff and countermand said instruction, if any, and thereby negligently required plaintiff to remain on said track between said and permitted said cars suddenly to move viopots, and then and there negligently caused lently along and over said railroad track, and that defendants, by said negligence, if any, then