180 Mo. App. 96 | Mo. Ct. App. | 1914
Plaintiff was assisting in taking down an ice house belonging to defendant. During the progress -of the work the place whereon he stood broke on account of its rotten condition, and plaintiff
The building was about 100 feet square and divided into five rooms, each 20 feet in width running the full length of the structure. Over each room was a gable roof sloping both ways from the roof ridge down to the valleys which extended lengthwise and above the partitions separating that room from the others. These valleys were about 32 feet from the ground. The roof of each room was supported by rafters placed parallel to and at regular intervals from each other and extending from the comb or roof-ridge down to the valley. Sheeting was nailed across the rafters and on the sheeting were the shingles. The feet of these rafters rested on the plate which was a timber of some width lying along and on the top of the wall of each room and was supported by posts in the walls set in the ground at intervals. The valley, therefore, lay along and upon the top of this plate. Over this plate was placed tarpaper and gravel forming the trough of the valley and preventing water from running through into the building. The condition of the plate, therefore, could not be observed by one standing on top in the valley because of this tarpaper and other roofing material, but the plate and its condition were easily observable from the inside of the room. This is important because plaintiff’s fall was caused by the breaking of the plate, which was decayed, and plaintiff’s complaint is that defendant knew of its rotten condition (which was unknown to plaintiff), and negligently assured plaintiff that the place where he was working was safe, and plaintiff relied upon that assurance and was injured by reason of the carelessness and negligence of defendant in directing plaintiff to work in a dangerous and unsafe place with an assurance that it was safe, when plaintiff did not know and
Plaintiff had been employed about four days but during that time had not been in the building and had not been in it for more than a year. On the day of the accident plaintiff was helping to tear the sheeting from the rafters over the east half of room No. 4 which was next to the outside room of the building on the east. He was standing in the valley between the roofs of rooms Nos. 4 and 5 and on the plate above mentioned. The sheeting was removed by beginning next to the roof ridge and working down to the valley or to what would have been the eaves of the room had it been standing alone. The sheeting had been removed down far enough to enable plaintiff to stand in the valley between rooms four and five. While thus standing and engaged in taking the sheeting from the rafters as aforesaid the plate broke and threw him to the ground.
Defendant insists that its demurrer should have been sustained. So far as contributory negligence and the plea that the accident was caused by plaintiff’s fellow servants are concerned, they are clearly not in the case, at least not at this stage. The house, though old, was not so weak or dilapidated as to be obviously about to fall. The outside walls looked safe and the evidence was the building was being taken down piece by piece for further use as lumber. Unless the building was so obviously dangerous that a reasonable man would not have attempted to go upon it to take it down, plaintiff cannot be charged with contributory negligence. Plaintiff’s fall was brought about, not by a collapse of the building, but by the breaking of the plate on account of a local defect hidden from him. He was not even aware of the danger to which he was subject by reason of the defect. And as to the fellow
As to the plea of assumption of risk, certain important elements in the case' operate to take it out of the rule that a servant assumes the ordinary risks inherent in the nature of the business in which he is engaged, and these elements must be carefully borne in mind. (1) Plaintiff was only 18 years of age, reared on a farm, with no prior experience in wrecking buildings. Defendant’s president, in charge of the work, was a man of twenty years experience in that kind of work. He was an expert. (2) Plaintiff was never in a position where he could observe the plate or its condition. He had never seen it and did not know it had rotted. But defendant’s president knew it and had known it for a long time. (3) Knowing of its defective condition, he not only failed to take any steps to remedy it, but he assured plaintiff in the most positive manner that the place was safe. (4) Plaintiff, unaware of the defect, relied upon the assurance of safety aud was injured. Hnder such circumstances the courts have repeatedly held the master is liable. [Burkhard v. Rope Co., 217 Mo. 466; Swearingen v. Mining Co., 212 Mo. 524; Carter v. Baldwin, 107 Mo. App. 217; Dodge v. Mfrs. Coal & Coke Co., 115 Mo. App. 501.] The fact that plaintiff was engaged in tearing down a building and therefore was engaged in a more or less hazardous undertaking, can make no difference in this case. The danger to plaintiff arose not from the general liability of the building to fall, but from a defective condition at one' place known to defendant and unknown to plaintiff; and defendant, without remedying said defect, assured plaintiff it was safe. With that knowledge, it was defendant’s duty to furnish plaintiff with a place as reasonably safe as the nature of the work would permit. [Dayharsh v. Railroad, 103 Mo. 570; Carter v. Baldwin, 107 Mo. App. 217.] And by assuring plaintiff it was safe, the case was no longer
We cannot agree with defendant that the statements made and repeatedly given to plaintiff were mere expressions of opinion and did not amount to an assurance of safety. When plaintiff first went to work on the building defendant’s president, on the ground and in charge of the work, told the employees, including plaintiff, that the building was perfectly safe. Some of the boys were apprehensive about going upon the building and the president said in plaintiff’s presence and hearing: “Boys, there ain’t a bit of danger in the world; go right on up; I will go up and work with you. Q. Tell the exact language he used and all he said. A. He said, “The building ain’t a bit dangerous; you needn’t be scared about going high.” During the progress of the work the president again said: “There ain’t no danger in the world; it is perfectly safe; if there was any danger in the world, boys, I would not have you up there. By the court: Q. You heard that, did you? A. Yes, sir.” On cross-examination plaintiff was asked as to what the president said to him and this occurred:
“Q. Did he say anything to you about the plate? A. No, sir.
“Q. Over which you were working? A. No, sir.
“Q. He never told you that was safe? A. He said the building was perfectly safe.
“Q. But he did not tell you anything about the plate? A. No, sir.
“Q. He did not tell you anything about that part of the roof where you were working when you fell? A. Yes, sir.
*103 “Q. What did he say? A. He said — he told a boy to go out and saw off a board and he said he was scared and he said it was perfectly safe out there, not a bit of danger in the world; he said, if there was any danger in this building I would not have you boys up there. I heard him say that.” Again at another place plaintiff testified:
“Q. You say Mr. Oarlock told you that it was safe there? A. Yes, sir.
“Q. What were you doing at the time he told you that? A. We were tearing off sheeting and letting down rafters.
“Q. Which were you doing? A. First one and then another.
“Q. Were you doing them both at once? A. No, sir.
“Q. Which were you doing when he told you it was safe up there? A. Letting down rafters and tearing off sheeting.
“Q. You were not tearing off sheeting at that time, were you? A. Yes,.sir; we were doing both.
“Q. At the same time? A. No, sir.
“Q. Well, what were you doing? A. Tearing off sheeting.
“Q. Then you were not letting down rafters ? A. No, sir.
“Q. Whereabouts were you tearing off sheeting? A. I was tearing off sheeting off of the rafters.
“Q. Whereabouts? A. On the ice house.
“Q. On the place where you fell? A. Not exactly right there, but pretty close to it. ’ ’
When the president gave him these assurances they were working on the roof over room No. 5, but the valley in which plaintiff was standing when he fell was the same valley he was in when the president told him this, since it was formed by the west half of the roof over 5 and the east half of room 4. In other words, when the president told him it was safe plain
“Q. Now, the place where he sent you that he said was safe was not the place where you fell, was it? A. He said the whole building was safe.
“Q. Never mind about that now. You can answer my question, can’t you? The place where he sent you that he said was safe was not the place where you fell, was it? A. Yes, sir; we worked right along there where we fell.
“ Q. Do you mean to say that for several days you tore off sheeting in the identical place where you fell? A. No, sir.
“Q. Then the place where you fell was not the place where you were on the first day when he told you it was safe? A. No, sir.
“Q. Then the place where you fell was not the place where you were on the first day when he told you it was safe? A. We were working right along there.
“Q. What do you mean by right along there? A. Right along where we fell.
“Q. Do you mean for several days you were taking off sheeting from the place where you fell? A. I never said that.
“Q. Where were you working when you fell? A. On the valley.
“Q. On which house? A. Between No. 4 and No. 5. .
“Q. When you first began to work on the building, where were you working? A. In the valley taking sheeting off of No. 5.
“Q. When you fell, you fell from the roof of No. 4, didn’t you? A. No, sir; I fell from the valley between 4 and 5.”
It is thus seen that the statements of the president were not the expression of a mere opinion, nor were
“Q. If the plate had been sound timber it would not have broken, would it; the taking off of the sheeting would not have caused it to break?
Objected to and objections overruled.
“A. No, sir; not if it had been sound.’’
The evidence did not show that the progress of the work affected the dangerous condition of the plate, but if it did, the president knew at the time the assurances were given that in the progress of the work, done according to his instructions, a stage would be reached when the plate would become unsafe. And yet, knowing of the condition of the plate, he not only took no steps to make it safe but negligently assured the servants that the place was safe. It is useless to pursue this branch of the case farther. The general doctrine as to the effect of an assurance of safety is thus stated in 4 Labatt on Master and Servant (2 Ed.), sec. 1373: ‘ ‘ If the servant is shown to have entered upon the performance of certain work, or continued to perform that work, relying upon an assurance of his master or
Plaintiff’s petition is not open to the charge of insufficiency because it failed to allege that plaintiff could not have discovered the defective condition of the plate by the exercise of ordinary care. The petition charged that plaintiff did not know of the dangerous condition, that defendant did know of it and assured plaintiff it was safe and plaintiff relied thereon. Under these circumstances plaintiff was not bound to search for danger but had a right to rely on defendant’s assurance. [Sullivan v. Railroad, 107 Mo. 66, l. c. 78; Meilly v. Railroad, 215 Mo. 567, l. c. 588; Swearingen v. Mining Co., 212 Mo. 524, l. c. 538.]
In the examination of the panel of jurors on their voir dire, plaintiff asked a question as to their relations with any liability insurance company. Defendant objected and moved to discharge the jury. Thereupon, out of the presence and hearing of the jury, the court inquired of defendant’s counsel if he denied that an indemnity company was defending the case. Counsel replied that an indemnity company was defending the case to a certain extent and that it was proper to ask only with reference to a specific liability insurance company. The court then asked plaintiff’s counsel if ■he knew the name of the company and counsel replied that he did not; that defendant’s counsel, in telling him of the insurance company, did not tell bim the name. Upon receiving this information, the court overruled the objection. It thus seems that there was an insurance company interested in the outcome of the case but the particular company was unknown to plaintiff.
During the trial of the case, and somewhat near its close, defendant’s president, while on the stand, was asked as to indemnity insurance. But by this time, the question was a pertinent one bearing directly on the question whether the Sheffield Ice Company was the company having the building dismantled.
In defendant’s answer, and in the opening statement it was denied that plaintiff was sent on the building by defendant or by anyone representing the defendant. The defendant’s president had testified that the Sheffield Ice Company did not own the ice house being torn down, and that Ben Myers, the foreman in charge at the time of the accident, was not foreman of the Sheffield Ice Company. In addition to this there was some question whether or not the work was not in fact being done by the Bean Lake Ice Company acting through Mr. Gfarlock who happened to be the president of the Sheffield Ice Company. In this state of affairs, Garlock was asked this question :
Q. I will ask you if it is not a fact that the Sheffield Ice Company took out a policy of indemnity insurance covering the liability of these men working on the razing of this building?
Mr. Porter: I object to that question for the reason—
Mr. Hill: I ask this question for the purpose of showing that the Sheffield Ice Company was engaged in employing these men to do this work.
*110 Mr. Porter: That question is objected to for the reason that if the Sheffield Ice Company did take out any insurance indemnifying the men, the policy of insurance is the best evidence of whether that fact exists; and the.further objection is made that it is immaterial in this case.
The Court: Sustained on the first ground.
Mr. Porter: And the defendant moves the court to discharge the jury for the reason that the plaintiff has, of his own accord, asked the question and in that question has solicited information as to whether this defendant carries a policy of indemnity insurance covering the plaintiff in this case.
The Court: It seems to me that the question is a pertinent question. Your attitude has been throughout that these men were not your servants; at least I took that from your opening statement and your attitude throughout the trial, and if that’ be your attitude this would be a pertinent question as tending to show for whom they were working.
Mr. Hill: That is what I asked it for.
The Court: The objection to the question is sustained and the motion to discharge the jury is overruled.
To further reasons given why the motion to discharge the jury should be sustained, the trial court ruled that the motion to discharge was overruled because of the attitude of defendant apparently disclaiming the fact that plaintiff was in its employ and that this was a matter that in the opening statement and in the attitude of the defendant throughout the trial had been controverted and the question would have been competent if offered in proper form.
Upon the issue of whether or not the Sheffield Ice Company was tearng down the building’ and not the Bean Lake Ice Company, evidence that the Sheffield Ice Company took out indemnity insurance covering the liability of the men engaged upon this particular
In Brower v. Tunrick, 66 Kan. 770, l. c. 771, the defendant was required to testify on cross-examination and over the objection of defendant’s counsel that he insured against accidents to his employees and that the insurance company employed the lawyers and defended that case. The court held the evidence was admissible and proper inasmuch as the defendant denied •employing the defendant. In Barg v. Bonsfield, 65 Minn. 355, the court held that evidence that defendant carried an indemnity policy on its servants, including plaintiff, was proper in view of the fact defendant had ■contended plaintiff was not defendant’s servant. The
In view of the foregoing authorities and the circumstances under which the question objected to was-asked, we cannot say it was asked in bad faith or was not pertinent to the issue as to plaintiff’s employment.
Neither can we say that the verdict was excessive. At the time of his fall plaintiff was a stout healthy boy eighteen years old. The fall broke his hip, rendered him unconscious in which state he remained most of the time for a week. He was in bed for five weeks. His kidneys were injured and passed blood for two weeks and so did his bowels. At the time of the trial his kidneys still were affected. His weight went down from 142% to 129 pounds. Since the accident he has been nervous and restless, able to do light work only. The hip bone was fractured at the top part or crest and at a place which helps to support the weight of the body. Twelve men saw the plaintiff and learned the nature of his injuries and fixed his damages at $6000. The trial judge approved the verdict. We cannot say it was excessive. The judgment is affirmed.