*1 Appel Company, C. Dixon v. Frazier-Davis Construction Charles S. 827. lant. 298 W. Two, 1927.
Division October *3 English appellant. Jowrdan <& *4 respondent.
Foristel, MutM, Bladr & Habenicht *5 DAVIS, C. ‘This an action personal injuries by thé servant against master, based on acts of negligence various relative to the falling of a bracket, girder attached to the of a viaduct then in the being demolished, course of the horizontal arm of which became de- disintegration tached as the result of and on which arm plaintiff sat dissevering while oblique arm acetylene lower with an torch, whereby ground he was caused to thirty fall to the feet below. The jury $10,000 a returned verdict for favor, defendant appealing judgment from the entered thereon. petition alleges in substance that engaged defendant was
wrecking tearing city and down structure in the of St. Louis, known Viaduct; plaintiff Fourteenth Street was an employee of defendant; working employee that while as such bracket, on a girder viaduct, became detached of said it fell so that plaintiff ground below, greatly injuring with on it to the him. The petition specifications negligence: (1) six comprises Negligently failing ordinary reasonably to use care furnish safe work, in that suffered place which to work on upper bracket, and the horizontal arm that the at its bracket, point old, and the weak of connection were girder, rusty likely collapse persons working and fall with or furnish negligently failed to fasten the bracket a scaffold place of work was rea- stand, and that said or other dangerous, which defendant knew or sonably all of safe and neg- known; (2) could have defendant care exercise work bracket when it knew or ligently plaintiff on the directed (3) defect; known ordinary care could have the exercise of *6 defendant negligently plaintiff assured of of safety the bracket a place work; as (4) negligently defendant failed to plaintiff bracket before required (5) was it; work on defendant negligently failed against to warn danger working bracket; (6) negligently reasonably defendant adopt failed to a safe doing method of work. general neg-
The plea contributory answer was a denial and a ligence to the effect that negligently look, failed watch and pay safety; negligently per- attention caused, to his own suffered and a mitted he to be loosened and detached from a while resting weight was thereon.
Plaintiff’s reply general answer a denial. to defendant’s was 1923, history develops defendant, The the case that on June day tearing occurrence, engaged wrecking and down was in city Louis, of St. as Fourteenth Street structure known bridged rail- Viaduct, Valley, Mill over the Creek which a network ex- leading Plaintiff-was an road tracks to and from Union Station. having that perienced bridge followed iron-worker, and structural years. line of work twelve had bridge being seems, because train demolished,
The was it piers on which the colliding center with one of the tracks, left bridge collapse, and causing portion bridge the central rested, if condition re- thought its become shaken it so dangerous. be probably would stored and beams, girders, columns steel consisted of The structure roadway carrying the main Running south, and north brackets. attached, large girders, which were I-beams or bridge, were had length, which three feet feet, brackets fourteen
at intervals of main to the fastened brackets were These carried the sidewalks. therefrom extended arm which by rivets, horizontal girders consisting triangular form, were right The brackets angles. at flush lying oblique the latter and vertical, horizontal, arms, three end running the outer oblique arm from with the against girder, inner The the vertical. lower end to the arm of the horizontal were The arms webbing. up steel triangle was made portion of three-fourths and inches wide three long, about four feet three to an inch thick. wreck- defendant Louis, the city St. bridge owned The com- been had north end taking down of ing contractor. course being in the then portion accident, the south prior to the pleted sidewalks, been had comprising material, All of demolishment. being burned were which brackets, saving these up removed, taken acetylene torch. with an off superin- defendant’s resulted work to the advent Plaintiff’s Structural Bridge local union communicating tendent were among whom work, to the six men "Workers, which sent Iron plaintiff, witness Sargent, father, helper, Sargent’s pusher. termed a The evidence failed to in- further mention or dividuate the work of the three other men. coming On to the work plaintiff designated himself “the burner.” *7 super- Plaintiff and the intendent conferred and advised ap- relative to the work. Tools and paratus were provided, and, addition to plaintiff pro- other work, ceeded to burn off the brackets. He had eight theretofore or burned ten brackets before the fall Plaintiff, following occurred. pro- the cedure burning used in brackets, knowledge the other with the visual of superintendent defendant’s pursued as to the course as to the other brackets, upon went the him, bracket that fell with sat astride it facing girder, the legs with keep his entwined to ad- falling, from justed his goggles, and acetylene torch, then means of the burned off oblique the or lower arm of the bracket or at near its connection with the girder, between himself bridge. and the It that the seems horizontal arm of the through disintegration bracket had rust and become length dissevered the had a girder, been such paint applied time that seeped theretofore had down and covered the end separated of the girder. bracket from the superintendent
Defendant’s admitted that he had seen walk upper out the or brackets, horizontal arms of the other them, straddle or legs, upon cross lock his lean forward the bracket girder with his head through oblique toward the and burn the ox lower torch, sitting upon sup- arm with the horizontal while the arm which ported weight. Having oblique arm, severed the would then he girder, arise and return to the from which he would burn loose causing upper the horizontal arm of fall bracket, or thus the .to ground. bracket, following While the arm a astride horizontal procedure, thirty the same with him course the bracket fell feet ground upper having arm, as he burned loose lower arm girder. become theretofore from the Plaintiff stated that dissevered vibrate, him without an bracket that fell wúth failed to occurrence danger. tending suspicions respect to That the to arouse his with stability customary testing bracket was to strike method point eight-pound girder, using a it at its five- to contact with weight of strength hammer, determining thus its to hold the tensile any test. The defendant make the worker. That he had seen test, no hammer superintendent of defendant stated that he made looking at the brackets bridge, but had that he walked over and walk- kicking with his foot girder, their them contact with further vibration, without ing upon out to test several them testing the that further stated inspection. superintendent other reveal the would not suggested hammer, with a bracket girder. Plain- from the separation bracket horizontal arm of the hammer, awith or test it tiff he did not stated that strength. customary testing Mm method suggested as the its customary that usual and Plaintiff’s evidence tended show burning working, brackets, was to sit on method of loose the burning oblique arm. Defendant’s horizontal arm while loose the to sit optional show that it was with workman evidence tended to dissevering the arm or while on the horizontal either bracket, arm; but it was the easier method to sit on oblique expected upon was not to fall the severance the bracket germane questions any, oblique facts, if to the arm. Other later will be noted. raised charges trial court error assignment initial
I. The plaintiff assumed plea that stinking from the answer the error byor the exercise dangers, which were obvious risk as to It is to him. known been care could have this court that pronouncements from the apparent *8 negli- master’s risk of the assumes the never servant regard, in that committed error was say it that no gence. to Suffice necessarily incident those are servant for risks which the assumes the master’s of the may in confutation be shown service, which to the may doctrine of the A discussion general denial. negligence under a 167; Patrum 73 S. W. Mo. McNair, 270, v. in be found Curtis Light & Power 622; v. Williamson S. W. 109, 168 Railroad, v. 259 Mo. Co., 274 S. Mills Doody v. 902; Woolen 219 W. Co., 544, 281 Mo. S. subject there expatiate the unnecessary to 692. think it W. We developed amplified. assignment
II. The second to the refusal relates of the trial court to save instructions to the iurv in the nature of demurrers to the first, It based,
evidence. is on failure of the evidence the defendant; and, develop negligence part on the of second, assumption develops on the that that the evidence contributory plaintiff guilty negligence. was of We here- propositions with treat advanced order. the (a) negligence arguing develop In that evidence fails to the part it said not liable in- defendant, the of is that the master is dangers by place work juries caused to the servant or defects the d,ue by diligence could have known of the master knew or unless is also a fundamental rule that dangers; that, corollary, as a it such inspect liability part the master for failure to no shown on the inspection evidence that such would premises the unless the shows injury. argued bracket, It that far prevented is then so have place upon which to bearing weight plaintiff, a safe as inspection would have plaintiff upon it, and that an work when went plaintiff only after unsafe became safe, then bracket shown it bad burned oblique arm, which resulted, not from the act of the master, but from the act of the servant. question presented is whether the evidence tends to show that defendant failed ordinary plaintiff exercise care a to furnish rea sonably place safe in which to work. duty It was defendant to look for dangers latent defects, is, dangers and defects open to observation, patent Hayes as well as defects. As is said in
v. Sheffield Co., Ice duty 221 S. inspection W. “the as to the master is affirmative, continually and must and positively be fulfilled performed.” According separation evidence horizontal arm of the bracket from could dis have been covered ordinary in,noting upon exercise of care vibration striking (which inspection a hammer defendant’s evidence shows made), was not developing inspection that an would have dis prevented covered the falling. defect and urged
It is actions, as the result of his made a safe injury to work proximate unsafe. The cause of the was not the plaintiff act severing oblique arm, precipitation but the due to the failure of defendant to exercise care to make an inspection particular horizontal arm of this determine whether the strength weight was of sufficient to sustain the upon dissevering oblique arm. demonstrated This was weight sustaining the horizontal arm of the other brackets oblique as the loose. As each bracket on arms were burned separate place duty work, de- structure constituted volved on each bracket. The situation is not defendant analogous weakening portions of certain structure contiguous portions, for the evidence tends or other demolishment *9 disintegra- wrecking bridge did not cause the to show that the of the analogous situation to separation parts. of Nor is the tion the danger dis- could not have been or defect state of facts where the inspection, for, al- ordinary making an by exercising care covered though danger could show that the tended to defendant’s evidence severing by inspection until the any discovered not at time have been tended condition, plaintiff’s evidence developed oblique arm the of the striking method, by the the usual inspection that an to show developed the condi- have eight-pound maul, would with a five- to jury. for the negligence was defendant’s tion. The issue of duty negligence? The contributory (b) guilty of Was reasonably safe servant furnish the ordinary to care to exercise non-delegable primary work is the place in which to upon duty imposed has been This- master. duty the mag^er yie servant, the who has of the protection for the to time must from The master upon performance. rely its right to reasonably safe in a is that it see work to place of inspect time condition by and to However, so maintain it. if tbe servant knew or ordinary danger exercise of or care could have known that the defect was obvious, open, hazardous imminent and he could apparent, rely not upon pláce the rule. And that the of work is of unusual danger, operation rule, may does not servant affect the for the by assume that it use ordi- as safe as the master can make nary expose him to diligence, care and and that the master will not warning, dangers, hidden or discovered or dis- concealed without ordinary 827, par. coverable care. C. J. use [39 1040.] comprising except Bearing sidewalk mind that materials disintegration parts had brackets been had removed ,do place, question than amplifying taken we cannot better to quote Hayes 705, 221 S. W. Co., v. Sheffield Ice Mo. reading: plain- while required defects,
“The defendant to look only apparent to tiff was discover what would have been one bound to ordinary prudence. to know the defects, The defendant was held plain- they if been discovered. The the exercise of care could have especially right in view assume, tiff had the to of the defendant’s president him with a assurances, that had furnished safe the latter’s ordinary care have work, unless he could exercise which caused his and which at the injury, the rotten beam discovered sheeting, part formed a which roof. time was covered plaintiff and did therefore, that the defendant appears, It which opportunity the defect caused equal an to discover have afforded, this would equal opportunity had been injury; but, if such right recovery, reason that it was not for the plaintiff’s not defeat defendant, look for de- although it such duty, as duty inspection The open to observation. as were not fects continually posi- fulfilled and and must be is affirmative, master tively performed.” general liability its falling did not result from of the bracket condition, defective which was dis- of its fall, it fell because but Inasmuch, however, care. by the exercise
coverable apparent, obvious or ho was known to danger was not law, as a unless he was duty inspection matter to make an under no purpose. for that employed tends maintains the evidence to show that regard,
In this defendant paint scrape and to off the duty devolved safety. It is true that defendant’s its determine place of work to duty scrape off that it was to show parol tends evidence *10 to that work, but we are unable find place inspect paint plaintiff’s except witness, shows, that so evidence plaintiff’s scraped off the other brackets rust were paint and that helper, stated may interpreted be as the evidence we think but one, this as well as easily burn the bracket more done to this was tending that show to
61 loose and not inspection for purposes. It province was then within the as jury, of fact, accept triers to disregard defendant’s evi- dence effect, to that and, having’ by disregarded their it, verdict de- evidence, fendant’s unless true, may admitted to be not be con- sidered in determining the demurrer evidence. plaintiff’s
We think experienced evidence shows that was an he in mechanic the line of in engaged. work which he was From this premise defendant argues, first, plaintiff that chose an place unsafe from which to place work when open him; a safe and, second, as an experienced mechanic, knowledge by without of tests made master, and placing therefore any without on reliance test made the master, duty place it was his to test the of work to determine its safety. arguing
In contention, first defendant asserts that could oblique have burned by sitting arm on the and that on sitting place the horizontal a more hazardous from which arm, to work, he guilty contributory negli assumed the risk and was gence. But it is evident he neither that assumed the risk nor was guilty contributory negligence duty as a matter law. It was the of the master warn danger, to discover and the servant of the hidden if the exercise of care it could be done. Of course if the danger master if does know of the reasonable care would not have it, hand, discovered the master not liable. On the other except duty defects, is not to search or look of the servant they apparent, in are obvious or unless the servant’s duties covered spection. Co., 55, v. 28 W. Plate Glass Mo. S. [Nicholds 991.] sitting place work, arms, His the horizontal before and after the burning oblique brackets, apparently arms the other According danger was unknown to servant. safe. The or defect duty plaintiff’s him to the bracket. evidence, no rested on times, plaintiff previously, fewa superintendent had observed work, and no oc by using same method burn off brackets other place and of work tending that method appears to show currence say if could dangerous. Even we apparently were potentially perform work, his chose a sitting arm on the horizontal of the defendant tended yet of conduct place, the course hazardous place of work on the acquiesced to show that defendant permitting him to use dis girder, thus than the brackets rather with obviously of work not hazardous respect to a cretion Co., Safety v. Richmond Gate respect a defect. [Hutchinson Mo. 152 S. W. 52.] assumption risk and relates contention Defendant’s second upon worked he contributory negligence
62 inspecting it, knowing inspection by without no made de in
fendant. answer to is found 39 The this contention reading: Corpus 1040, “A Juris, page 827, paragraph by the rely right upon performance servant has the to the agents imposed upon master or mas duties the authorized protection ap ter for tools, the furnish suitable servants, of his to pliances, reasonably places work, to them etc., safe condition, they time time, reasonably in a safe to see that are condition, and to has actual maintain servant them that unless the danger knowledge doing work contrary, to the unless the the or place is obvious appliances the or master by with the furnished the question jury whether and it was a imminent.” It is manifest that working servant was place the defect was That the where the hidden. by the importance, was no for was not constructed master the by and, according plain master, of work furnished the ordinary by evidence, tiff’s the exercise the defect was discoverable upon duty inspection devolved the mas inspection, care of which employed. case of ter, he was The upon not unless so servant, the point, 155, is not 370, v. 166 66 S. W. Telephone Co., Roberts Mo. upon servant, who was duty inspection the rested for there negligence purpose repair. The hired to search out defects ' assumption parties, well as the contributory negligence and resulting that the demurrer by jury, for the of risk were properly overruled. the evidence was given instance complains at the of Instruction
III. Defendant
complaint
authorized
plaintiff.
is that
instruction
in the course of said
empowered
jury to find that
by de
and directed
plaintiff was ordered
work the
^en(^an^
evidence,
work, as shown in the
do certain
required
go
him to
which in the
course thereof
extending
from a
out
perform
upon
certain bracket
upon and
work
empowered
1
authorized and
bridge.
on
Instruction
also
said
work
defendant ordered
jury
part
as a
said
find that
bracket.
upon
work
a certain
about
to consider facts
jury
These two instructions authorized
comprises
evidence, either
no
record
evidence. The
covered
required
or
ordered
that defendant
expressly
implication,
work. The
bracket to do
upon
a position
to take
evidence
off,
to cut it
than
further
direction to him went no
sitting
on
performance
capable
develops work
position
the easier
although
discloses that
girder,
evidence
bracket.
was to sit astride
purpose
accomplish from which to
there-
and are
facts
predicated
non-existent
are
The instructions
fore broader than the
In
evidence.
Belting
Albrecht v. Shultz
Co.,
12,Mo.
quired dangers. to do such work to discover defects and previously ^e jury ^ave question said that it was a plaintiff whether ques was included in which negligent, tion duty was the of plaintiff inspection. to an make By this precluded instruction jury considering ques the is tion duty plaintiff of the of danger inspection. an to make While the was require not jury so obvious as instruct find' to the court to to for defendant, yet part de record contains evidence on the of plaintiff employed fendant that experienced was as an burner and among that his testing place duties was determine of work to safety. its plaintiff’s negligent.. If this duty, plaintiff was was then failing in test, to make the for the that he understood evidence shows place method of than testing probably of work better .the superintendent erroneous in that who hired him. The instruction is regard. Rys. in Again, W. Co., v. United 181 S. [Wilson 19.] plaintiff chargeable struction is erroneous it states was because that only place in at dangers knowledge with such defects and of ordinary of which was work him in the course he at as would come to duty place work, and his If work. it was beyond ground chargeable show, the evidence so tends to he was by covered the instruction. they find and be jury that if informs the
Secondly, the instruction exercised such -care evidence, lieve that as shown prudence would have safety ordinary and person his own care place or similar the same if his and under exercised, negli- guilty of plaintiff was not circumstances, then in portion of the purport this We think the Sence- plaintiff evidence shows that the struction assumes safety. While ordinary for- own its prudence exercised care being capable so inter may doubtful, yet easily it is meaning be it, to the ease, view relates as we preted. question in the The vital aspects evidence duty it. inspection The result 64 questions inability around ability
revolve tire of the of defendant duty care, discover the defect the exercise of inspecting an in plaintiff. of work cast Therefore being struction mean de capable interpreted that the evidence veloped [Ganey v. plaintiff negligent was not error. fact Bausch, 619; Kansas 168 S. W. McMillan v. City, Mo. S. W. 835. ] jury
Thirdly, the instruction tells the effect that right guilty recovery negligence not to defeat his un sufficient obviously dangerous. less This the condition of the bracket was portion right jury of the instruction deletes the duty inspection, make an cast consider j]jm though danger evidence, even defendant’s Upon erroneous. instruction was obvious. amplify charged, errors inas- unnecessary other it is Y. While *13 yet suggest that counsel on again occur, we may they as much question proceedings into the injecting refrain retrial re- from statements side as to refrain insurance, well liability propriety. doubtful at least marks of judg- instructions, we reverse the in the noted of the errors Because Ilenwood, GG., concur. the cause. and remand ment Hiffbee 0., adopted opinion by Davis, foregoing PER CURIAM: The judges All of the concur. opinion of the court. as the County Buchanan, Appellant. S. W. B. Wilson v. Marion 842. One, 1927. Division October