172 Mo. 53 | Mo. | 1903
This is an action for five thous- and dollars damages for personal injuries, received by the plaintiff, while in the employ of the defendant, in-his elevator, in Kansas City.
The plaintiff suffered a nonsuit, which the court afterwards set aside, and from which order the defendant appealed.
The allegations of the petition as to the cause of the injury and the negligence charged are as follows: “That,on November 1, 1899, and at all times hereinafter mentioned, the plaintiff was in the employ of and working for said defendant in and about said Crescent Elevator. That on November 1, 1899, he was working •on the bin floor of said elevator and the spiral conveyor became disarranged and did not work properly, so that it was necessary to disconnect it with the power from the engine; in order to do this the plaintiff attempted to throw the belt off of the pulleys connecting the said
The answer is a general denial, with special pleas of contributory negligence and assumption of risk.
The case made by the plaintiff was this: for over two years before the accident the plaintiff had been in the employ of the defendant. The plaintiff is a nephew of the defendant’s wife, and at the time of the accident he was twenty-nine years old. It was the plaintiff’s duty to weigh the grain in and out of the elevator, to see that it was put in the proper' bin, to-look after the machinery on the upper floors and if anything went wrong to shut it off if he could and fix it,, and if he could not do so, then to notify Ed. Hunt, the superintendent. ■
Without entering into a detailed description of the machinery it is enough now to say that the grain is carried to the top of the elevator, and then there are-spiral conveyors which carry it to the several bins. A conveyor is a kind of a trough made usually of iron, on the inside of which there is a spiral screw or auger which by revolving carries the grain along the inside of the conveyor. The outside of the conveyor is stationary and has drop flaps over each bin that may be opened so as to permit the grain to fall into the proper bins below. The spiral screw or auger on the inside-of the conveyor is operated by means of a belt and pulley, that is, a belt working around a revolving shaft. There were two such conveyors in this elevator, on the east and west sides, thereof respectively. Where the-two ends. of shaft are coupled together, there is a knuckle that goes around the shaft and a setscrew that
Upon this showing the court nonsuited the plaintiff, and afterwards set it aside and granted a new trial, and the defendant appealed.
I.
The negligence charged in the opinion is that the defendant furnished a stick to throw the belt off the shaft and a rope to tie it up while he should have had a lever attachment for doing this.
That such was the method that had been used for about eighteen months before the accident there is no doubt or conflict in the evidence. The only evidence that was offered, however, that such a method was unsafe, was the opinion of Hunt, the superintendent, and while he gave the opinion, he gave no reason whatever
The correlative rights and duties of the master and servant are thus defined in Minnier v. Railroad, 167 Mo. l. c. 112:
“1. . It is the duty of the master to furnish to the servant a reasonably safe place and reasonably safe machinery and appliances in which and with which to do the master’s work. [Tabler v. Railroad, 93 Mo. 79; Grattis v. Railroad, 153 Mo. 403.] ‘It is not the duty of the master to furnish any particular kind of tools, implements or appliances. His duty in this respect is to use ordinary care and diligence in selecting and furnishing safe and suitable tools and implements. No inference of negligence can rise from evidence which shows that the implement was such as is ordinarily used for like purposes by persons engaged in the same kind'of business.’ This terse statement of the rule was announced by Black, J., in Bohn v. Railroad, 106 Mo. l. c. 433. This court, in banc, speaking through Sherwood, J., in Steinhauser v. Spraul, 127*65 Mo. l. c. 562, said: ‘It is well-settled law that an employer is not bound to furnish his employees the safest known appliances, tools or machinery, the latest approved patterns of tools and improvements therein, etc., nor does he render himself liable by failing to discard tools or appliances which are not such, and to supply their places with those which are more safe. [2 Thompson on Neg., p. 983; Blanton v. Dold, 109 Mo. 64]’
“The servant in entering the service of the master assumes the risks that ordinarily and usually are incident to the business being conducted by the master, and his wages include compensation for injuries received from such risks. In Bradley v. Railroad, 138 Mo. l. c. 302, this court, per Macearlane, J., said: It is equally well settled that a master can conduct his business in his own way, and the servant, knowing the hazards of his employment as the business is conducted, impliedly waives the right to compensation for injuries resulting from causes incident thereto, though a different method of conducting the business would have been less dangerous. ’ To the same effect is Jackson v. Railroad, 104 Mo. 448.
“It is also the law, not only in this State but almost universally, that if the master fails in his duty to his servant to furnish safe appliances, and if the servant knows, or by the exercise of ordinary care could know, that the appliances furnished are not- altogether or reasonably safe, the servant is not obliged to refuse to use the appliances or quit the service of the master if he reasonably believes that by the exercise of proper care and caution he can safely use the appliances notwithstanding they are not so reasonably safe, and if he does use them and exercises such care and caution and is injured, the servant does not waive his right to compensation for injuries received .in consequence, nor is he guilty of contributory negligence. But if the appliance is obviously so dangerous that it can not be safely used even with care or caution, or as it is sometimes said, if the danger of using it is patent, or such as to threaten*66 immediate injury, then the servant is guilty of contributory negligence if he uses it, and the master is not liable notwithstanding his prior failure of duty. [Huhn v. Railroad, 92 Mo. 447; Soeder v. Railroad, 100 Mo. l. c. 681; Holloran v. Iron Co., 133 Mo. l. c. 476.] ”
Whilst it is true that mere knowledge on the part of a servant of the defective machinery or improper appliance will not bar a right of action or require the servant to quit the service if the danger does not threaten immediate injury and if the servant reasonably supposed the machinery or appliance could be used by the exercise of ordinary care (Francis v. Railroad, 127 Mo. 669; Pauck v. Beef Co., 166 Mo. 639), and whilst it is true that if the facts of any case are such that if reasonable men may fairly differ as to whether there was or was not negligence, the case is one for the jury (O’Mellia v. Railroad, 115 Mo. 221; Hamman v. Coal Co., 156 Mo. 232), still these rules of law do not control the decision in this case, because the case made for the plaintiff does not bring him within these rules. The plaintiff himself says there could be no danger from using the stick to throw the belt off of the shaft. It is too Mear to admit of a difference of opinion among reasonable men that it is not negligence on the master’s part do furnish the servant with a rope to tie the stationary belt to the railing so as to prevent its rubbing against the moving belt, and to require him to do so. The rope was a safe appliance for such a purpose. That the appliance could be safely so used without risk or danger of injury, is not only demonstrated by the fact that it had been so used many times for a year and a half, and by the fact that the plaintiff had so used it two days before on the west belt, but it is also a plain, obvious physical fact, that no man of ordinary intelligence could be found to deny. So that, if the rope on this occasion •caused the accident, it was not because the rope was not a suitable appliance for the purpose it was intended for, but because the rope was improperly handled or applied by the plaintiff himself. [King v. Morgan, 109 Fed. l. c. 448.] And this being true the court properly