43 Mo. App. 44 | Mo. Ct. App. | 1890
Lead Opinion
Charles H. Eugler, the plaintiff’s deceased husband, was employed by the defendants in the construction of a building in the city of St. Louis. While in this employment, the deceased fell from the second story of the building to the first floor, thereby receiving injuries which resulted in his immediate death.
The petition, after alleging that the deceased was a carpenter by trade, averred that his death was caused by the negligence of the defendants by reason of their failure to provide a safe and proper place for him to perform the work required of him. The negligence thus complained of was stated as follows: “That the defendants were then constructing a light and air shaft in said building to reach from the second floor thereof to the top of the same, the dimensions of which were .about eight by eleven feet, in which space no floor had been laid in said second floor, and it was open, except •a guttering that projected fifteen inches inward all around from the walls of said shaft; upon which guttering it was necessary for said Charles R. Fugler to stand and work; that the foreman of defendants in ■charge of said building commenced the erection of a scaffold for the purpose of making a safe and proper place for said Charles H. Fugler and others to work in the construction of said shaft,- but the defendants, instead of permitting him to proceed in the erection of the same, carelessly and negligently and recklessly refused to permit him to do so, and peremptorily ordered that the'work proceed in the construction of said shaft without a scaffold ; and the said Charles R. Fugler then proceeded to work on said shaft, and, in consequence of the aforesaid wrongful act, neglect and
The defendants filed a motion to make this petition more specific and certain. The complaints were, that the petition failed to show whether Fugler was an experienced or inexperienced workman ; it failed to show whether or not the danger, to which it was alleged the deceased was exposed, was obvious or hidden; and further it was nowhere averred that the defendants had made Fugler any assurances that it would be safe for him to do his work from the gutter, or that he relied upon such assurances. The court overruled the motion, and the defendants saved their exception by then and there tendering a bill of exceptions.
In their answer the defendants, after making a general denial, averred that the death of Fugler was an accident, or that it happened because of his imprudence, carelessness or thoughtlessness directly contributing thereto. This was denied by the reply. Upon the issues thus made up, the case was submitted to a jury. There was a finding and judgment in the plaintiff’s favor for $1,300. From this judgment the defendants have appealed.
The first assignment of error presents for our consideration the action of the court touching the defendants ’ motion to make the petition more specific and certain. The plaintiff’s right of recovery'was in no way predicated upon the idea that the deceased was an inexperienced person. The simple averment that he was a carpenter, without more, conveys the idea that he was a workman of ordinary experience and was well acquainted with the usual hazards attending his employment. Nor is the right of recovery,' as we understand it, based upon the theory that the deceased was induced to go into a place of danger upon the assurances of his employers that there w as no clanger. . The cause of action is for
The next assignment of error has reference to the •exclusion of evidence offered by the defendants. The defendants offered to show that the gutter complained of was as safe a place to work on as swinging platforms ■of the same width used by painters, and as platforms used by carpenters in putting cornices on buildings. We cannot see how this evidence could have enlightened the jury, and it might have had the effect to mislead them. Such platforms are always constructed some distance from the walls of the buildings, and in this way the danger of a workman losing his balance by coming in contact with the wall does not exist. When the projection or platform is constructed against the wall of a building, and it is not wide enough for the workmen to
The third assignment challenges the sufficiency of' the evidence to authorize a recovery. There are three grounds relied un in support of this assignment: First. That the evidence failed to show that Pugler fell from the gutter, or, if he did fall, that the fall was traceable to any act or omission of the defendants. Second. That the perils of working in the gutter were so obvious that Pugler was bound to take notice of them, and, that, by undertaking to do the work, he assumed the risk as an incident to his employment. Third. That, under the evidence, the gutter was a safe place to perform the work required of Fugler. There is another question which we will also consider in this connection. The court, on motion of the defendants, instructed the jury that, if they found that such work was usually done-either from a scaffold or from a gutter, then the finding should be for the defendants. It is now claimed that all the evidence tended to prove this fact; hence, the verdict was against the instruction. The determination of this assignment requires an examination of the evidence.
There were four light and air shafts constructed in the building. These shafts extended from an opening in the fioor of the second story to the roof. They were-
The following question was propounded to the witness by the court: “ Q. I ask you how that kind of work is generally done, that you were engaged in at the time Mr. Fugler met with the accident ? A. The work we started on, when we should put up a scaffold, is work that is done from a scaffold.”
The examination was continued by the plaintiff ’ s attorney : “ Q. I will ask you whether a careful man might not have succeeded in doing it (the work), without being injured, without a scaffold ; that is, that he might have succeeded in doing it? A. Oh, he might.”
On his cross-examination, the witness further testified : “ Q. And it is a fact, isn’t it, that when there is a projection in the first floor, such as you had, that the carpenters will do the work from the projection sometimes ? A. If they are compelled to ; yes, sin
“ Q. Have you never seen it done before ? A. No, sir.
“ Q. Then, how do you know that it is done, usually ? A. I done it from a scaffold.
“ Q. How do you know then, if you never saw this kind of work done before? A. I never saw it done without a scaffold.”
That Fugler fell from the gutter, while engaged in the work assigned to him, there can be no dispute. The jury found that the gutter was an unsafe place to do the work required of him, and that his fall was attributable to this. This finding is questioned by the defendants on the ground that there is no substantial evidence to support either proposition. In this we* think they are mistaken. The evidence shows that Fugler was required to work on a projection extending only fifteen inches from the side of the shaft. In order to do the work, he had to use both hands; to stand
As to the other branch of the finding, it is true that there is no positive evidence as to the direct cause of the fall; however, there is no evidence that it was caused by the inattention or recklessness of the deceased. In the absence of any such testimony the presumption is that he was in the exercise of ordinary care. Buesching v. Gaslight Co., 73 Mo. 219; Soeder v. Railroad, 100 Mo. 673; Schlereth v. Railroad, 96 Mo. 509; Schultz v. Moon, 33 Mo. App. 329. The strong probabilities are. that some portions of the deceased’s body came in contact with the side of the shaft, thereby causing him to lose his balance. The physical facts demonstrate this very clearly. He was a large man, and it was not possible for him to turn around in the gutter without striking some portion of his body against the sides of the shaft. That this would likely cause him to lose his balance, is a matter of common knowledge. It is undisputed that he was a man of good habits and perfectly healthy ; therefore, it is not at all probable that his fall was brought about by physical or mental ailments.
But it is urged that, if it be conceded that the projection was unsafe, and that by reason of this Fugler lost his life, yet there can be no recovery, because the defect was obvious, and that, as the deceased continued to work with knowledge of the defect, he assumed the increased risk or hazard attending his employment. On
We think this instruction is substantially correct. The defendants object to that portion in italics. The rule is that, even though defects in machinery or other appliances are patent and known to the servant, yet, if the danger attending the use of such appliances is of such a character that the machinery can safely be used by the exercise of care, caution and skill, the servant does not, in such a case, assume the’ risk of such use. Conroy O. Iron Works, 62 Mo. 35; Stoddard v. Railroad, 65 Mo. 514; Thorp O. Railroad, 89 Mo. 650; Devlin O. Railroad, 87 Mo. 545; Bridges O. Railroad, 6 Mo. App. 389; Dale O. Railroad, 63 Mo. 455; Huhn O. Railroad, 92 Mo. 440; Stephens O. Railroad, 96 Mo. 207; Soeder v. Railroad, 100 Mo. 673; Wood’s Master & Servant, sec. 359.
The earlier decisions in this state held to the doctrine that, where the defects in machinery or appliances Avere obvious and known to the servant, there arose a legal presumption that the servant assumed the increased risk attending the employment. But in the case of
In the case of Stoddard v. Railroad, 65 Mo. 514-520, the court reaffirmed what had been said in the Conroy case. It said: “ It is true that the evidence' tended to show that plaintiff had knowledge of the spring frog and the lowness of the brake beam of the' tender, and that two hands instead of four were undertaking to make up the train. But the question as to whether, with this knowledge, the action of the plaintiff in making up the train was of such a reckless character as to make it such contributory negligence on his part as to deprive him of any remedy for the injury, was a question properly referable to the jury under proper instructions,” etc.
The court in Huhn v. Railroad, 92 Mo. 440, adhered to the same rule and restated it in a very clear and succinct manner as follows: “It has been several times held by this court that, where the instrumentality with which the servant is required to perform service is so glaringly defective that a man of common prudence would not use it, the master could not be held responsible for damages resulting from it. But, if the servant incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonable to suppose that it may be safely used with great care or skill, a different rule applies. In such cases mere knowledge of the defect will not defeat a recovery. Negligence on the part of the servant
In Stephens v. Railroad, 96 Mo. 207, we find the same rule laid down. The opinion quotes with approval the following from Thompson on Negligence: “If, therefore, the master orders the servant into a situation of danger, and he obeys and is thereby injured, the law will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even where, like the servant, he was not entirely free to choose.” 2 Thompson on Negligence, sec. 975. In the opinion the court said : “There may be cases where the servant is ordered to do a particular act, and the order is so unreasonable, and the act so manifestly dangerous to life and limb, that the court, on the evidence, should declare the servant guilty of negligence in obeying the order of the master, and should direct a nonsuit. The general rule, however, is that the question is one for the jury.”
We might quote from other cases, but the foregoing will suffice. The rule to be deduced from them is, that the servant does not assume the risk of attempting to use machinery or appliances furnished by the master, though obviously defective, and their use be attended with increased risk, unless such danger or risk is apparent, threatening or imminent.
It may be true that the cases cited, as to their facts, are dissimilar to the present case, but, if the principle of law stated is. applicable, it becomes our duty to apply it without question. The rule has become too firmly rooted in the jurisprudence of the state to be questioned by us. That the gutter, upon which Fugler was required to do the work, was an appliance within the meaning of the foregoing decisions we do not think -can be fairly called in question. By order of the
But even though the gutter be treated as an appliance. the doctrine announced by the foregoing cases is not applicable, if all the evidence in the case was to the effect that the work, which Fugler was required to perform, was usually done either from a scaffold or the gutter. If such were the condition of the proof, we would be compelled to hold that the danger assumed by the plaintiff’s husband was the usual risk attending his employment, because a usual method had been adopted for its performance, and that, in the absence of any testimony that the guttering was faulty in its construction, the plaintiff could not recover. But, as we have seen, the plaintiff’s evidence tended to show that such work was usually done from a scaffold only, and the jury under proper instructions, found this to be a fact. The jury also found that the performance of the work from the guttering was unusual and extra hazardous, and they also found that the danger attending the use of the gutter was the proximate cause of Fugler’s death, and that such danger was not threatening, immediate or imminent. It only remains for us to say whether the performance of the work in the manner required by the defendants was so manifestly dangerous to life and limb, that the. trial court ought to have directed a non-suit instead of submitting the issue to the jury. This we cannot do. Schmidt testified that by the exercise of good care the work might be done by standing on the gutter, and the fact, that he and Fugler completed three of the shafts without injury to either, has some tendency to prove that the danger was not. imminent or. threatening.
The plaintiff’s instruction made the defendants liable, if the projection “ was an unsafe place.” The defendants’ fifth instruction rendered them liable, if the jury found that the projection “ was not a reasonably
The last assignment of error involves the correctness of the court’s instruction as to the measure of damages, which reads: “The jury are further instructed that, if they find a verdict for the plaintiff herein, they will assess her damages at such sum as they may believe from the evidence she sustained from the death of her husband, not exceeding the sum of $5,000 ; and, in estimating the same, they will take into consideration what they may believe from the evidence would have been the value of her support from him from the
The defendants complain that this instruction is erroneous, because it was not qualified as required by ■section 4427, Revised Statutes, 1889. This section’concludes as follows: “And in every such action the jury may give such damages, not exceeding $5,000, as they may deem fair and just with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.” The evident intention . of the legislature was to confine compensatory damages to the necessary injury to the survivor resulting from the death. The supreme c'ourt in the case of Parsons v. Railroad, 94 Mo. 286, in construing this statute, decided that whenever the .circumstances <?f a case afforded a safe-standard by which compensatory damages could be approximately ascertained, such standard should be given to the jury. The instruction complained of is in harmony with what the court said in the Parsons case, and it is so worded as to afford the defendants no ground • of complaint. It coniines the damages to the necessary injury. As was also decided In the Parsons case, this section of the statute also conferred upon the party suing the right to exemplary damages in any case, wherein the circumstances would have authorized such ■ damages at the suit of the deceased, had he survived the injuries. In the case at bar, there was nothing to show that the acts of the defendants were wanton, or wilful; therefore, the court had no right to instruct on any such theory. Even if it was a. proper case for exemplary damages, we are at a loss to know how -the defendants were prejudiced by such failure. We will have to rule this assignment likewise against the defendants.
Finding no error in the record, the judgment of the circuit court will be affirmed.- Judge Thompson concurs
Dissenting Opinion
(dissenting). — The main facts of the case are stated in the opinion of my associates. As,, however, I have come to the conclusion that the law furnishes no right of recovery on the uncontroverted facts, I shall briefly state them in a'slightly different order, so as to more conveniently apply the law to the-conceded facts.
The air shaft, in which the accident happened, was one of four, identical in shape. They were eight feet by ten feet in the clear, and ran from the second story of the building to the roof, which was several stories-higher. The decedent and another carpenter were engaged in boarding the sides of these shafts. While-nailing on the boards, they stood on a plank securely fastened over a gutter, which plank, according to plaintiff ’ s ■ evidence, was from fifteen to seventeen inches wide. This gutter and plank ran along the four sides of the air shaft, leaving an open hole in the center, about sixteen feet deep, between the first and second, floors, designed to admit light to the floor below through plate glass, which was to be placed1 over it when the-shaft was completed. ’ The men, in boarding up the shaft, stood on this plank and nailed the boards as far as they could reach ; then they built a platform to nail them higher up. There was some evidence on part of the plaintiff that this was the usual way of doing such work, although her witnesses1 did not agree on that point.
There is no pretense in the.evidence that the defendant was working under different conditions in this shaft than those in which he had worked in the other three ; nor that the plank in this shaft was not perfectly sound and firm ; nor that his employer had any knowledge, touching the danger of the place, superior to that which he had ; nor that the danger, whatever its character, was not perfectly obvious to a man of the most ordinary understanding ; nor that it was not glaring, immediate, continuous, and-the same all the time. The naked question presented by this case seems to me to be, whether an experienced workman, of mature age, falling from an elevation, is entitled to recover -from his employer for injuries sustained on the sole ground that, in the opinion of the jury, the place on which he is required to stand in doing the work is not wide enough. As, according to the simple laws of gravitation, a man can always fall from a higher to a lower place, the question, taking the temper of juries into consideration, is practically narrowed down to the inquiry, whether the law, which requires the master to furnish to the servant a safe place, means a place from which the servant cannot fall off. If this is the law, then practically the master becomes an insurer of .the servant’s safety, as far as the danger of the place where the servant is required to work is concerned. This is such a radical departure from the law on that subject, as commonly
We have recently had occasion, on a careful consideration, to formulate the law applicable to the relative rights and duties of master and servant, when the servant is injured owing to patent and obvious defects in the place where he is required to work. Flynn v. Bridge Co., 42 Mo. App. 529. The general rule on that subject, recognized both in England, and in every state of the American Union, is that, if a- workman is employed on a dangerous job, or to work in a service of peril, and if the danger belongs to the work itself, or the service in which he engages, he will be held to all the risks which belong to either. But, where there is. no danger in the work' or service in itself, and the peril grows out of extrinsic causes or circumstances, which cannot be discovered by the use of ordinary precaution and prudence, the employer is liable precisely as a third person, if the loss or injury is caused by his neglect or want of care. 4 Wait’s Act. & Def. 417, and cases cited. To discuss even only a considerable number of the numberless cases in which this proposition, seemingly simple, has been applied to the facts presented by the individual case, would swell this opinion far beyond the legitimate limits of such a paper. I must be content with the simple, statement that an extensive reading on this subject has failed to disclose to me a solitary decision which would render the master responsible to the servant under the conceded facts of this case.
There seems to be an intimation in the opinion that the law governing the liability of the master to the servant is different in this state from what it is in other jurisdictions. I shall briefly examine the cases cited. The first is Conroy v. Iron Works, 62 Mo. 35. In that case the plaintiff was injured by the timbers of a bridge giving way owing to insecure fastenings. It was in evidence that, two days previous to the accident, the
In Stoddard v. Railroad, 65 Mo. 514, the evidence-tended to show that three hands were necessary to do the work of switching; that one became disabled, and the yard-master, who was informed of that fact neglected to put another one in his place; that the-engineer, who was given to intoxication and had been drinking the morning of the accident, backed the engine without a signal and in a careless way; that the brake or beam of the engine was lower than was usual and safe; that, as a concurrent result of these facts, the plaintiff, who was a brakeman engaged in making up trains, had his foot caught in a spring frog, and was knocked down by the brake beam and seriously injured. The court decided that these facts-furnished substantial evidence enabling the plaintiff to go to the jury, and that he was not debarred from recovery,, because he was aware of part of these facts ;” this is all that that case decides.
In Thorpe v. Railroad, 89 Mo. 650, the injury to the plaintiff, a switchman, occurred by the temporary insufficiency of the number of men employed in switching the cars, as in the preceding case. The plaintiff
' In Devlin v. Railroad, 87 Mo. 545, the judgment, which'was in favor of the plaintiff in the trial court, was reversed. The plaintiff was a locomotive engineer and was injured by the engine being thrown from the track by the breaking of a defective rail. One of the '■questions was, whether he was debarred from recovery, 'because he knew the general condition of the track ; ■■and the court (by Black, J.) held “he was not bound ■ to quit the service, nor did he assume all risks from ■ want of repair, unless the track was so far out of repair " to his knowledge, that it would be necessarily danger- ■ ous to the mind of a prudent person to run an engine ■mver it:”
In Bridges v. Railroad, 6 Mo. App. 389, the injury was caused to a fireman, who was on an engine, which, owing to a defective and badly worn flange, was thrown 'from the track. The evidence conceded that the fire•men knew that the flange was worn. A demurrer to the evidence was overruled. The decision rests on the following statement in the opinion of the court (by Hayden, J.): “The employe under similar circum:stances, in order to retain the employment, may be perfectly willing to take the increased hazard ; and, if here the danger was immediate, and the plaintiff knew this, he ought not to recover. But, if the flange was so worn as to be more than ordinarily dangerous, yet if it was a matter of skill and judgment to know flow much wear and tear it would stand, the plaintiff had
In Dale v. Railroad, 63 Mo. 455, the action was by a fireman for injuries received in consequence of theunsafety of the railroad track. The defendant moved for a nonsuit on the ground, that the plaintiff knew the-condition of the track. The proof was that the plaintiff had observed that the track was rough, and inferred that it was a bad track from the bumping of the cars-in passing over it. N apt on, J., who delivered the-opinion of the court refusing a nonsuit, said: “ It would be a harsh conclusion to say that the plaintiff,, who was merely a fireman, would be required to-abandon his employment upon a merely speculative-apprehension that the defendant had not seen,- and would not see, that the road, over which their locomotive and cars passed, was properly and safely constructed. The immediate cause of the accident was a defective joint of the rails of which he could have known nothing as a fireman passing over the road, and which the-defendant might have known by the exercise of proper-diligence.”
In Huhn v. Railroad, 92 Mo. 440, the plaintiff, a, switchman, was injured owing to a defective blocking of a guard rail. He knew that the guard rail was not blocked. There was a demurrer to the evidence, which, was overruled, and the plaintiff recovered judgment. Black, J., in delivering the opinion of the court upholding the judgment, said: “It has been several times held by this court that, when the instrumentality with which the servant is required to perform service is-so glaringly defective, that a man of common prudence would not use it, the master could not be held responsible for damages resulting from it. But if the servant-incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonable to suppose that it may be safely used with great care, or skill, a different rule applies.
Stephens v. Railroad, 96 Mo. 207, was twice before the court. A judgment in favor of the plaintiff was first reversed and the cause remanded, but was upheld on the second appeal. The question here involved did not properly arise on-either appeal, the only question being as to whether the master was liable for injuries caused by a negligent order given b}^ his vice-principal to a servant, and whether the dangerous character of the order, which the servant was required to execute on the instant, was so obvious as to require him either to .refuse obeyance, or execute it at his peril.
In Soeder v. Railroad, 100 Mo. 673, a brakeman was thrown from the top of a car and killed, owing to the .jumping of the car when passing over a defective rail. 'The suit was by his widow. There was no positive evidence that the decedent knew of this defect, but the ■court, speaking through Brace, J., assumed that his mere continuance in the employment after the knowledge of the defect, on the authority of Huhn v. Railroad, supra, was not sufficient to debar him from recovery.
After going over these cases, I am still at a loss to understand how the points decided in either of them furnish any warrant for the conclusion of my associates in this case. It is not the declarations of the law, which may have been made in one or the other, but the application of the propositions stated to the points in judgments, which make the law, when we speak of it as founded on precedents. The great difference between all of these •cases and-the case at bar is, that here the unavoidable inference arises from the uncontroverted facts that the servant not only knew the defect, if such it may be
What is meant by a safe place, which the master is required to furnish his servant to work in or about, is not the obvious or patent safety or unsafety of the place, because, in the nature of things, many kinds of labor have to be performed under conditions relatively unsafe and often dangerous. What is meant by it will best appear from cases illustrating the proposition. Thus, in Perry v. Marsh, 25 Ala. 659, a slave was killed while hired out. The building in which he was employed was in a ruinous condition and fell. It was held that the hirer, who was owner of the building and knew its defects, was responsible. So it was held that the master was liable to a servant who received a gunshot wound while tearing down a fence, the master knowing that the work would be forcibly resisted, and concealing the fact from the servant when he put him to work at it. Baxter v. Roberts, 44 Cal. 187. So in Chicago & Northwestern Ry. Co. v. Jackson, 55 Ill. 492, it was held that a brakeman was entitled to recovery for injuries received in descending a defective ladder which had some rounds missing, there being no positive evidence that he knew of the defect. A fireman’s administrator was held to be entitled to recover for his death, caused by the explosion of a defective boiler, he not knowing of the defect. Columbus, etc., Ry. Co. v. Arnold, 31 Ind. 174; Cumberland & Pennsylvania Ry. Co. v. Moran, 44 Md. 283. So in Keegan v. Kavanaugh, 62 Mo. 230, a widow was
It may be said that the question, whether the danger was apparent, was in this case submitted to the jury in an instruction of the court. But how can a question be submitted to the jury for their finding, concerning which there can be no possible controversy ? The instruction says apparent and threatening, as if the court considered that a danger perfectly apparent was not enough, but that it must also be threatening, whatever that may mean in this connection. It is a matter of daily experience, of which many courts have even taken judicial notice, that the submission of a case of this class to the jury always leads to the same result. To relieve the distress of others is a commendable impulse which juries are but too apt to follow, although they must necessarily do it at the expense of others, They are apt to forget that judicial charity under the guise of law, and at the expense of others, is but an act of licensed oppression.
I a.m of opinion ' that the decision in this case is directly opposed to the decision of the supreme court in Aldridge v. Furnace Co., 78 Mo. 559 ; to Devitt v. Railroad, 50 Mo. 302, and other cases. The question involved is of the greatest importance to men engaged in mechanical and industrial pursuits, and the case should be' certified to the supreme court for final determination.