146 Mo. App. 565 | Mo. Ct. App. | 1910
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of the defendant. The plaintiff recovered and defendant appeals.
While in defendant’s employ and engaged as a laborer in its stone quarry, plaintiff was seriously injured as a result of a large stone rolling upon his limb. It appears that while he was engaged under the immediate direction of his foreman, in' prying a particular stone out of a large mass, another stone, which had theretofore been held in position by the one which plaintiff sought to remove, was thereby precipitated forward and occasioned his injury. The evidence tends to prove,, too, that the act in which plaintiff was engaged at the time did not threaten immediate peril although the result might have been foreseen by the foreman whx> directed the work.
To a complete understanding of the case, it will be necessary to state the facts somewhat extensively. Defendant owns and operates a stone quarry in a bluff on the Missouri River in Lincoln county. The quarry faces toward the east and has been worked from the top of the bluff to a point near or about the level of the river bank. The depth of the quarry is about fifty feet. After the stone is quarried, it is reduced to small parcels, to the end of running it through a crushing machine. The work of reducing the stone to small particles is done by the laborers with sledge hammers and this is the work for which plaintiff was employed, although he assisted otherwise about the quarry as well. Through the means of explosives, defendant had separated from the ledge of rock in the bluff a portion
A day or two before his injury, the plaintiff had assisted another employee in thus drilling and blasting the portion of stone referred to. What is known as “pop shots” were exploded therein and the mass of stone twelve feet long, seven feet wide and six feet deep was shattered, to the end that it might be reduced for the crusher. It seems that although this body of stone was cracked and shattered by the “pop shots” referred to, it remained standing as before. That is to say, it was not scattered over the floor of the quarry but remained in position, shattered and cracked throughout. The plaintiff and other laborers, about a dozen in all, having completed the task of clearing up the floor of the quarry, approached this body of stone with the purpose of dismembering and reducing it. The plaintiff laid aside a shovel with which he had been working and
The men engaged at the quarry each bear a number by which, instead of by name, they were addressed by the foreman. The plaintiff’s number was twelve and the foreman usually so addressed him. Plaintiff says while he was standing with the crowbar in his hand and viewing the mass of stone or “hunting it,” the foreman said, “Twelve, bar out that rock,” indicating a particular stone near the corner of the body and about two feet above the floor of the quarry; that he hesitated an instant longer to make an examination and the foreman repeated, “Twelve, I tell you to bar out that rock under that one there,” whereupon he inserted the crowbar and lifted the stone from its position. Upon the stone which he lifted with his bar receding before the lift, another one supported by it rolled out of the mass upon his leg and inflicted the injury. In this connection plaintiff says that the foreman was standing to the side and in the rear on a slight elevation in a position to see the danger incident to barring out the stone referred to. Plaintiff says from the position in which he himself stood, at the time he was ordered to remove the particular rock and while engaged in the act, it was impossible for him to discover the likelihood of the three cornered stone above and slightly in the rear of the one he removed being precipitated forward upon him, and that the foreman could have seen it from the position he occupied at the time the order was given.
At the conclusion of the testimony on the part of the plaintiff, the defendant requested the court to peremptorily direct a verdict for it. This request having been denied, the defendant introduced no evidence whatever on its part, contenting itself to stand on the
It is argned. here that the court should have directed a verdict for the defendant for the reason the testimony fails to disclose a breach of its obligation to exercise ordinary care to the end of furnishing the servant a reasonably safe place to work. Rather, the precise argument is, that in the circumstances of the case, the rule requiring the master to exercise ordinary care to the end of furnishing the servant a reasonably safe place to perform his labor does not obtain and that the plaintiff must be declared to have taken the risk, for the reason he received his injury from a peril ordinarily incident to the employment in which he was engaged. We are not persuaded by this argument on the facts in proof for the reason it appears the defendant retained control of the men and directed their movements' in and about the work. This is especially true in this case for the reason it appears plaintiff received his injury while performing the very act which he was directed to perform by defendant’s foreman in charge. It is no doubt true that there are cases where the rule requiring the master to furnish the servant a reasonably safe place does not obtain, such, for instance, as where the place in aiid of itself is reasonably safe and the particular work being prosecuted is one which renders it unsafe. The doctrine is frequently applied to cases where the servant is employed in dismanteling and tearing down a building or prosecuting a particularly hazardous work in a mine or about a quarry, or undermining an embankment. It seems to be especially pertinent in those instances where the dangers are transitory and passing only and inhere rather in the mode and manner in which the work is being prosecuted than in the place itself. And then, too, an element of non-liability frequently adverted ,t.o in such cases is the fact that the master has given the work entirely in the charge of the, servant and permits him to perform it
Now the precise question for decision does not relate alone to the fact that the plaintiff was engaged in rendering a place reasonably safe in itself to be an. unsafe place, but it reveals the fact as well that the master ordered him to pry out a certain rock, the result of which might have been foreseen by the exercise of ordinary care on the part of the master, as fraught with probable peril to plaintiff and which danger appears not to have been obvious or patent to the plaintiff. Although the mass of stone had been shattered by the “pop shot” blast referred to, it stood intact and appears to have been reasonably safe in and of itself.
According to the evidence, the plaintiff was unable to discover from the position he occupied the latent danger in removing the particular stone referred to and he says the defendant’s foreman might have seen it, as: he was standing at another part of the yard upon a slight elevation. This proof, together with the fact that the foreman repeated his order in rather emphatic-terms to the plaintiff to remove the stone mentioned, tends to show negligence on the part of the defendant, and that plaintiff was reasonably careful in the premises.
If it appeared that he might safely perform the act directed by exercising care on his part, then the question of his contributory negligence is one for the jury. [Huhn v. Missouri Pacific Ry. Co., 92 Mo. 440, 447, 4 S. W. 937.] It may be, had the plaintiff performed the act voluntarily on his own account without being directed so to do by the foreman, that he should be declared to have taken the risk in so doing, but the negligent order to perform it under the circumstances given in evidence, removes the case from the .category of assumed risks for the want of voluntary and free action of the mind on the subject.
Generally speaking, it is the law of this State as declared by the Supreme Court, that the servant no longer assumes the risks arising from the master’s negligence, however obvious. [Dakan v. Chase, etc., 197 Mo. 238, 94 S. W. 944; Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Pauck v. St. Louis Dressed Beef, etc., Co., 159 Mo. 467, 61 S. W. 806.] Be this as it may, it is the duty of the servant to obey such reasonable orders as are givén by the master, and when he is directed, as in this case, to perform a task which it appears he may safely do without injury to himself, it cannot be declared as a matter of law that he assumed the risk, especially is this true in the present instance where the order was repeated in an urgent manner and the plaintiff not given an opportunity to reflect. In every instance of assumption of risk, there must be present the element of assent thereto either express or implied, on the part of the servant. [Adolff v. Columbia Pretzel & Baking Co., 100 Mo. App. 199, 73 S. W. 321; Lee v. R. R., 112 Mo. App. 372, 87 S. W. 12.] The
Notwithstanding the defendant’s exception, the court gave, at the instance of the plaintiff, the following instruction which covered the whole case:
“The court instructs the jury that it was the duty of the defendant lime company to use all reasonable precautions to avoid exposing plaintiff to danger, and to use ordinary care and diligence to provide him a safe place to work, and if you believe from the evidence that a large body or ledge of stone in defendant’s quarries had been broken and loosened from the natural walls of defendant’s quarry by drilling and blasting the same, and that said ledge or body of stone had been permitted to stand and become insecure and dangerous on account of defendant’s negligence, and liable to fall upon and injure plaintiff while working at a point below and near the base thereof, and that the defendant knew, or by the exercise of ordinary care and attention could have known, of the dangerous and unsafe condition of said ledge or body of stone; and if you believe from the evidence that the superintendent or foreman of the defendant lime company, having power and authority to manage and control plaintiff and the men working in said quarry, and direct them as to the place and manner of performing their work, ordered the plaintiff into said position of danger, and directed the plaintiff to do the work at which he was engaged at the time he was injured, and that the plaintiff, in reliance on said order and in obedience thereto, undertook and engaged in said work at the place and in the manner directed by said foreman, and that while plaintiff was so engaged in said work a portion of said ledge or body of broken and. loosened stone fell upon and injured the plaintiff, then the plaintiff is entitled to recover in this cause; unless you further believe and find from the evidence that the condition of said ledge*577 or body’ of stone below which plaintiff was so working was such as to threaten such glaring, apparent and immediate danger that a person of ordinary care and prudence would have refused to work around it under the circumstances.”
The instruction is faulty and susceptible to criticism in several respects. In the first place, it informs the jury that it was defendant’s duty to furnish the plaintiff “a safe place to work.” This is not the law. Even on the theory of the case attempted to be incorporated in the instruction, the defendant discharged its duty in that behalf if it exercised ordinary care to the end of furnishing the plaintiff a place as reasonably safe as the character of the work to be prosecuted would permit. However, if other portions of the instruction clearly defined the obligation, this of itself might not constitute reversible error. Bradley v. Chicago, Milwaukee, etc., R. R. Co., 138 Mo. 293, 39 S. W. 763, is a case in point. A leading error in the instruction is that it predicates a liability on a hypothesis of fact that is not presented by the proof. It will be observed that the instruction informs the jury in substance that if it believed defendant had broken a large body of stone and permitted the same to stand and become insecure and dangerous on account of defendant’s negligence and liable to fall upon the plaintiff while working thereabout and defendant knew, or by the exercise of ordinary care could have known, of the dangerous and unsafe condition of such body of stone, and the foreman directed plaintiff into a position of danger to do the work on which he was engaged, etc., then under other circumstances recited therein the finding might be for the plaintiff. The proof wholly fails to support the theory of the instruction and on which, together with the order of the foreman, it seems to predicate liability, that is, that defendant had negligently permitted a large body of stone to stand and become insecure and danger
Another feature of the instruction calling for condemnation is, that as to plaintiff’s contributory negligence, it tells the jury the finding should be for him unless the condition of the body of stone where he was working was “such as to threaten such glaring, apparent and immediate danger that a person of ordinary care and prudence would have refused to work around it under the circumstances.” This is not the rule by which the plaintiff’s contributory negligence should be determined and its statement in this manner infringed the rights of the defendant. The point has been expressly ruled as reversible error on an instruction con-
It appears the identical error mentioned is incorporated in plaintiff’s instruction No. 5 as well. Upon a retrial, the instructions should be rewritten and modified in accordance with the views herein expressed.
The judgment should be reversed and the cause remanded. It is so ordered.