Carter v. Baldwin

107 Mo. App. 217 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts). — 1. If it should be conceded that the petition failed to state a complete cause of action the amendment was permissible under section 657, Revised Statutes 1899 ; but even if the allowance of the amendment was erroneous the error was waived by the filing of an answer to the petition as amended. Liese v. Meyer, 143 Mo. 547; Bernard v. Mott, 89 Mo. App. 403.

2. The evidence for both parties shows that Gilmore hired and discharged men; that he superintended the underground work in the mine and directed the men where and how to work, therefore he was a vice-principal, notwithstanding the fact that he worked with the men and performed the same character and grade of labor they performed, and it was not error under all the evidence for the court to assume in the instructions that Gilmore was a vice-principal. Gormly v. Iron Works, 61 Mo. 492; Miller v. Railway, 109 Mo. 350; Dayharsh v. Railway, 103 Mo. 570; Russ v. Railway, 112 Mo. 45; Keown v. Railroad, 141 Mo. 86; Donahoe v. Kansas City, 136 Mo. l. c. 670; Steube v. Iron & Foundry Co., 85 Mo. App. 640; Haworth v. Railway, 94 Mo. App. 215. As vice-principal it was Gilmore’s duty to provide the men with as reasonably safe places to work as the nature of the employment would admit. Day-harsh v. Railway, supra.

3. Though the plaintiff was but nineteen years of age yet was an experienced miner and assumed such risks as were usually incident to his employment and such other risks, if any, as were glaringly presented to one of his experience as a miner. The evidence shows that plaintiff in common with the other employees, observed the crevice the evening before the boulder fell and the probability of its falling was discussed among the employees and Gilmore; that Gilmore expressed the opinion that it would not fall. On the return to the mine the next morning no change was perceptible in the crevice, and Gilmore was then asked by plaintiff what he thought of it and he again expressed the opinion that it would not fall until it was squibbed and told plaintiff where to work and what to do. Plaintiff testified that he relied upon the superior judgment of Gilmore and went to work as ordered. It may be conceded from this evidence that plaintiff was apprehensive that the boulder would fall, and the very fact that he called Gilmore’s attention to the crevice shows he had some apprehension of danger, but the foreman was of the opinion it would not fall and expressed that opinion in very forcible language. In these circumstances, notwithstanding plaintiff apprehended danger, he had a right to rely on the superior judgment of the foreman and obey his orders and because he did so he is not to be convicted, as a matter of law, of assuming the risk of the danger he apprehended. Stephens v. Railway, 96 Mo. 207; Monahan v. Coal Co., 58 Mo. App. 68; Larson v. Mining Co., 71 Mo. App. 512. The boulder had remained in place over night without any perceptible chang’e in the crevice. It can not be said, therefore, as a matter of law that the danger was so manifest as to threaten immediate injury and whether or not plaintiff was guilty of contributory negligence or of assuming the risk threatened by the crevice in the boulder, was a question of fact for the jury. Hamilton v. Mining Co., 108 Mo. 364; Lucey v. Oil Co., 129 Mo. 32; Minnier v. Railway, 167 Mo. 99.

In the case of Aldridge’s Admr. v. Furnace Co., 78 Mo. 559, relied on by defendant, there was' no assuranee to the plaintiff by the mine boss that the mine was safe, and the evidence tended to show that the. danger was patent to any ordinarily observant man. The facts in the case at bar are essentially different from the facts in the Aldridge case. The danger was not a patent one bnt was'merely an apprehended one and there was assurance of safety given by the foreman. The case of Watson v. Coal Co., 52 Mo. App. 366, is, in its facts, like the Aldridge case. So. also are the numerous other cases cited by the defendant from other states. They announce the general doctrine that an employee assumes the ordinary risk incident to his employment and such extraordinary risk as is patent to an ordinarily observant man or patent to one having experience in the business in which he is engaged. Whether or not the servant assumed the risk in this character of cases is most generally a question of fact for the jury. To authorize a court to say as a matter of law the danger assumed was so glaring that the servant can not recover, the evidence must be all one way and to one effect, that is, the danger must be so open and glaring that it could not have escaped the observation of an ordinarily prudent man or the notice of one with plaintiff’s experience. The evidence in this case does not show that the danger was a glaring one, and the case was therefore properly submitted to the jury. The instructions given are in harmony with the views herein expressed and we think correctly presented the law of the case to the jury. The defendant’s refused instructions were not supported by the evidence and did not correctly state the law. We think the case was fairly tried, that no prejudicial error intervened and that the judgment is for the right party and should be affirmed.

Judgment affirmed.

Rey burn and Goode, JJ., concur.