Bloomfield v. Worster Construction Co.

118 Mo. App. 254 | Mo. Ct. App. | 1906

NORTONI, J.

(after stating the facts). — Generally speaking, it is the dnty of the master to* exercise ordinary care to furnish the servant a reasonably safe place, where, by exercising ordinary care on his part, he can perform the labors assigned with a reasonable degree of safety to himself, subject only to the risks ordinarily incident to the employment. But it is said that this well-settled rule has an equally well-settled exception, and that is, that the master is not required to furnish the servant such a safe place in which to work when the danger is temporary and transitory only, and arises from the hazard and nature of the work itself and is known to the servants. This no doubt is true. What is here termed an exception to the rule of safe place, however, amounts to no more than the doctrine that the servant assumes the risks ordinarily incident to the employment, inasmuch as the rule of safe place is abrogated thereby only as to such risks as arise from the nature and hazard of the work and are therefore ordinarily incident, etc. [Ziegenmeyer v. Goetz Lime & Cement Co., 113 Mo. App. 330.] And it has been said that the rule of safe place does not impose upon the master the duty of keeping a building which is being erected, or an embankment which-is being undermined, in a safe condition every moment of the progress of the. work, so far as its safety depends upon the due performance of that work by the servant and his fellows, inasmuch as under the peculiar facts of those cases, the work itself renders the place otherwise safe, to be unsafe. [Armour v. Hahn, 111 U. S. 313-318; Bradley v. Ry. Co., 138 Mo. 293-302, 39 S. W. 763; Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, 91 S. W. 460-466; Gulf, etc., Ry. Co. v. Jackson, 65 Fed. 48-50; Ziegenmeyer v. Goetz Lime & Cement Company, 113 Mo. App. 330, 88 S. W. 139, and cases therein cited.] And this amounts to no more than that the servant assumes the risk ordinily incident to the employment, for in the labor of making a previously safe place one of unsafety, there is essentially a hazard incident thereto which would render it most unreasonable and unjust to affix an obligation upon the master to maintain the place reasonably safe in the absence of an assumption on his part to do so.

With the rule and its exception thus stated, we are in full accord, and did the record before us show no more than that the plaintiff after having undertaken to preform the labor of removing the joists, and to assist in tearing clown the building, was simply assigned by the employer to labor thereat and was injured as detailed by him because no sufficient supports or bracings were furnished and placed by the defendant, in the absence of the defendant having undertaken to furnish such, we would be forced to the conclusion at once that under such circumstances, the rule of safe place would not obtain here so as to affix any obligation upon the master to render the same reasonably secure for the performance of such labors and that therefore his injury resulted as a hazard ordinarily incident to the employment in which he had embarked and voluntarily assumed by his not having required the master to furnish supports or bracings for the building while the labor was being performed, inasmuch as the work he had -undertaken to do and was performing when injured, was rendering an otherwise safe place, to be unsafe, and the injury resulted from a risk encountered as incident thereto. The application of this principle to this case, under those circumstances, however, would depend entirely upon the fact that the servant had voluntarily entered the employment without requiring the master, and the master not having assumed, to exercise due care to furnish a place reasonably safe for performance of the labor. But that is not the case before the court. There is another fact and a most important fact in this connection for consideration, which, in the opinion of the court, removes it from the influence of the principle stated and places it within the purview of the rule of safe place in a relative sense; and that is, the master had, by its foreman on the ground, retained control of the work, was then and there directing how it should be done and had undertaken to furnish bracings and supports for the building by having directed that joists be permitted to remain every twenty feet throughout the same for that purpose. Under these circumstances, the master having assumed this obligation, it became its duty to exercise ordinary care to provide such reasonable precautions as were compatible with the nature and character of the work to insure a reasonable degree of safety under the attending circumstances. [Bradley v. Ry. Co., 138 Mo. 293-304.] This duty the law imposes upon the master in this case, in view of the fact that he had assumed it, for the master was there directing the work and in partial discharge of this duty, had directed, by its foreman, that an occasional joist be not removed, as indicated, clearly for the purpose of supporting the building. Now, under these circumstances, when the master is present on the ground, overseeing and directing the work and bracing the building, as in other cases, it is the servant’s duty to exericse ordinary care for his own protection. This done, it is his duty to obey orders and perform the service, relying upon the master to do his duty toward exercising the same degree of care to provide reaspnable precautions to prevent injuries from befalling him. The plaintiff in this case knew the master was supporting the building by means of the occasional joists remaining twenty feet apart, and had the right to rely upon what is fairly presumed to be the superior judgment of the master, that these bracings were sufficient to render it secure unless, by the exercise , of ordinary care on his part, he could have discerned the danger to himself.

The court is therefore of. the opinion that the question for plaintiff’s safety was, together with that of the exercise of ordinary care on his part in working thereabout, properly referred to the jury. Wherefore, the judgment will be affirmed. It is so ordered.

Bland, P. Jand Goode, Jconcur.