187 Mo. App. 327 | Mo. Ct. App. | 1914
Plaintiff recovered a judgment for personal injuries received by him while in the employ of defendants, as receivers of the St. Louis and San Francisco Railroad Company, in the capacity of a boiler maker working at defendants’ shops in Springfield, Missouri. His injuries resulted from a fall from the scaffold on which he was working at drilling flexible sleeves from the boiler sheet of a locomotive, using for that purpose a drill operated by electric power. The locomotive boiler on which he was working had been stripped from the trucks and other machinery and set up on end on the floor in a perpendicular manner, the top being between eleven and twelve feet high. Part of the work had to be done near the top and in doing this plaintiff used a scaffold made of two “wooden horses” with boards sixteen to twenty feet long extending horizontally from
The motor used weighed about one hundred and fifty pounds and was suspended, raised and lowered by means of a chain attached to it and passing over an iron bar made of two inch gas pipe extending from the top of one horse to the top of the other, and, as these horses were not built high enough, an extension to each was made of an upright board, one inch thick and five inches wide and three to four feet long, nailed on each horse with a “V” shaped notch sawed in the top of each extension and the pipe laid in these notches. This horizontal bar supporting the motor was therefore about thirteen or fourteen feet from the floor and the chain passing over it held the motor suspended at one end and a -balance weight at the other. The cause of plaintiff’s fall and resultant injury was that it was necessary in'drilling to have the motor at right angles with the hole being drilled, and to do this to move from time-to time by sliding along the floor one of the horses a distance of from two to five or six inches. The plaintiff had a helper in doing his work and, while the helper was moving one of these horses for the purpose just mentioned, the extension thereon gave way letting down the end of the rod supporting the motor, which in turn slided down against the horse, tipping it over and the whole thing collapsed, throw
The petition, after stating that while plaintiff was working with the boiler placed in an upright position the scaffold fell by reason of the extension giving way, alleges defendants’ negligence as follows: “Plaintiff states that his injuries as aforesaid were due to the negligence of the defendants in failing to exercise ordinary care to furnish plaintiff with a reasonably safe place to work, and in failing to exercise ordinary care, to furnish plaintiff with reasonably safe horses and extensions, and in furnishing plaintiff with old and defective and insecure horses and extensions, improperly and insecurely fastened thereto, or extensions too weak and insecure to support the weight of the motor and balance weight, when the defendants knew, or by the exercise of ordinary care could have known of the defective and insecure or too weak condition of the horses or extensions, and in adopting the method of doing said work as above set forth, which was not a reasonably safe method. ’ ’ The answer is a general denial, coupled with a plea of contributory negligence that plaintiff himself selected the horse with the defective and inscure extension from a number of similar ones and that plaintiff voluntarily remained on this scaffold while the same was being moved and adjusted while he could and should have descended to the floor.
The errors complained of are the refusal to direct a verdict for defendants and the giving and refusal of instructions. Of these in their order.
The defendants insist that the doctrine of res ipsa loquitur does not apply to an action by a servant against the master, and that nothing showing negligence was proven except the mere fact that the extension board gave way. It is true that there is no presumption of negligence arising from the mere occurrence which resulted in injury to a-servant As there
In this connection defendants say that even if defective there is no evidence to warrant the jury in finding, as it was required to do, that the defendants, had knowledge of the defect or that it existed for such a length of time as to warrant a finding of knowledge. It is shown that these horses with the extension pieces nailed thereon had been in use for a long time
It is defendants’ duty to use reasonable care in furnishing reasonably safe appliances in the first instance and to keep them in that condition so long as they are used. This implies the duty to watch over and inspect such appliances both to see that they are reasonably safe to start with and to keep them in that condition. “In cases such as the present, the duty to inspect and to make ordinary mechanical tests at reasonable intervals is an affirmative and a continuous duty. ‘It will not do to say that having furnished suitable and proper machinery and appliances, the master can thereafter remain passive, so long as they work well and seem safe. The duty of inspection is affirmative and must be continually fulfilled and positively performed. Anything short of this would not be ordinary care.’ ” [Organ v. Railroad, 142 Mo. App. 248, 252, 126 S. W. 191; see also Bible v. Railroad, 169 Mo. App. 519, 530, 154 S. W. 883; Gutridge v. Railroad, 105 Mo. 520, 526, 529, 16 S. W. 943.] If it is proper to hold, as the court did of a chain in the Ogan case and of a rope in the Bible case, supra, that the defendant must take notice that such instrumentalities deteriorate and weaken by usage and heavy strain, why is this not true of the instrumentalities used in this case?
We come now to consider whether plaintiif is shown to have been guilty of contributory negligence & J
Nor was it necessarily negligence that plaintiff stayed on the platform while his helper was down moving one end a few inches. The plaintiff went to the other end or horse and stood there and there was little, if any, of his weight thrown on the end being moved and none on the iron rod • or extension which gave way. Plaintiff said he could and did to some extent steady the iron bar supporting the motor and thereby lessen the danger of an accident. There would have been danger of the motor or boards falling on him from this very accident had he been on the floor assisting to move the wooden horse. All he was required to do was what a reasonably prudent man would do under the circumstances relying on the master to have furnished him safe appliances to work with. Viewed from the hind-sight, his remaining on the platform proved to be the more dangerous in this particular incident, but that is only because the appliances furnished by the master proved defective — a fact not apparent to him and which he was not required to search out. The evidence is certainly not conclusive that he knowingly remained in a dangerous position. [Johnson v. Railroad, 164 Mo. App. 600, 623, 147 S. W. 529; Johnson v. Railroad, 160 Mo. App. 691, 78, 141 S. W. 475; Gordon v. Railroad, 222 Mo, 516, 536, 121 S. W. 80.] We hold, therefore, that the plaintiff made a case for the jury on the negligence of defendants in furnishing the wooden horse with the unsafe and insecurely fastened extension to support the motor and we find no error in the instructions on this point.
This instruction appears to be too broad and indefinite, giving the jury a roving commission in the field of conjecture. No particular method is pointed out by the instruction as being negligent. We gather, however, from plaintiff’s brief and argument, that what claims to be a negligent method of doing the work is that defendants placed the boiler on end in a perpendicular position, thus making it about eleven feet high, instead of laying it down horizontally, making it only about seven feet high; that the perpendicular position alone necessitated the extensions being placed on the horses and the same being moved from time to time as the work progressed. It was shown that placing the boiler in a horizontal position was the method used in two other railroads’ shops. Under this evidence, was this method of doing the work a ground of negligence sufficient to warrant a recovery distinct from the defective extension! We think not. In order to establish negligence something more must be proven than that the method of doing the work was different from that used by others. It is always competent to prove custom to negative negligence. [Gordon v. Railroad, 222 Mo. 516, 535, 121 S. W. 80 ; O’Mellia v. Railroad, 115 Mo. 205, 21 S. W. 503; Overby v. Mears Min. Co., 144 Mo. App. 363, 374, 128 S. W. 813.] It would be competent to prove that defendants adopted a
Whether the boiler was placed on end or laid horizontal, the wooden horses, with the platform and iron supporting the motor, would be used. The only difference is that when horizontal the motor need not be raised quite so high, dispensing with any necessity for extensions or the Horses being moved. But, making the horses higher in the first place would also dispense with the necessity for extensions so that negligence might as well be predicated on the use of horses too short for the purpose for which they were being used. It seems apparent, therefore, that the height of the boiler was not the cause of the injury independent of the defective wooden horse. If the wooden horse had been constructed of sufficient height without extensions, this accident could not have occurred as it did, as there would have been no extension to give way; and it is apparent that had the extension been sufficiently strong and securely fastened to the horse, the appliance would have been reasonably safe the same as if the horse had been high enough without them. There is no inherent danger in causing a servant to work at a height of eleven feet rather than seven feet; and, given a safe place to work, the increased height
Nor was the method of doing the work the proximate cause of this injury. The proximate cause was the defective extension which gave way.’-’ “A proximate cause in the law of negligence is such a cause as operates to produce particular consequences, without the intervention of any independent unforeseen cause, without which the injuries would not have occurred.” [Schwart v. Railroad, 110 La. 534.] ‘That negligence is the proximate cause of the injury which sets in motion a train of events that in their natural sequence might, and ought to be expected to, produce an injury, if undisturbed by any independent or intervening cause.’ [Holwerson v. Railway, 157 Mo. l. c. 231.”] Quoted in Glenn v. Railroad, 167 Mo. App. 109, 116, 150 S. W. 1092. In that case it was held that where a street car, approaching a switch at a street crossing, ran away and became unmanageable through the negligence of the motorman and the defective brakes and thereby ran into a curve of the switch and was derailed resulting in plaintiff’s injury, the manner of constructing the switch was not the proximate cause of the injury although it was shown that it would have
Because of these errors, the cause is reversed and remanded.