192 Mo. App. 370 | Mo. Ct. App. | 1916
This is an appeal by tbe plaintiff in a damage suit for personal injuries. At the close of plaintiff’s evidence tbe court at tbe request of tbe defendant directed a verdict in its favor.
In the trial from which this appeal resulted the fact is brought out by plaintiff’s evidence that when the defendant’s foreman ordered him to place this bolt in the hole, the plaiiVfciff did not know that a platform would soon be erected in the opening on which he could stand and do this task, but that the foreman knew that the platform would be built and knew that within fifteen to twenty minutes such' platform would be constructed. The testimony of the plaintiff, does not tend to show that the bolt was placed in this hole for the purpose of constructing the platform, but was merely put there on which to fasten a block and tackle with which the angle bars would be drawn up. The evidence further discloses that that very afternoon the platform was completed, and that the hole in which plaintiff was attempting to put the bolt when he slipped and fell was but.eight feet from the bottom of the main opening in the stack, and that he had one foot on the iron rim of the stack at the time he fell, from which it clearly appears that had he waited to perform this task until after the platform was constructed he could have stood on the platform and done what he says he was sent to do by the foreman.
The foreman testified: “Q. Hanging this contraption to raise the angle bars up to the big opening in the stack could have been done as well after the platform was built as before, could it not? A. That was best to do to build the platform first.”
There is a clear conflict in the testimony of the plaintiff and his witness, Allen, who was the foreman, as to the order actually given. Allen denies that he ordered the plaintiff to put the bolt in the hole, but the plaintiff testifies that the foreman did order him to do it, and Allen himself admits that before plaintiff stepped onto the rim of the opening in the stack he knew that plaintiff was going to place the bolt in the
The well known rule is stated in LaBatt’s Master & Servant (2d ed.), vol 3, sec. 906, p. 2403: “The degree of care required of an employer in protecting his employees from injury is the adoption of all reasonable means and precautions to provide for the safety of his servants while in the performance of their work.”
It may be stated that it is the duty that the law requires of the master to use all reasonable means and precautions against injuring a servant'which ordinary prudence and foresight, in the light of the existing knowledge of conditions, dictate. This has reference, not only to a safe place in which to work and the kind of appliances furnished, but as well to the requirements, demands and orders issued to servants from time to time in the process of the work.
The liability of the master is measured by his knowledge, either actual or constructive, of the surrounding facts and circumstances, and in determining whether the master is negligent, courts do not take into consideration what the servant knew, or what the servant did, or what the servant might have done. A master, found negligent, might be relieved of his negligence for some act, conduct, or knowledge of the servant, but this would in no wise make the master’s negligent act any the less negligent.
We have in this case an act which if ordered to be done in the light of certain circumstances and conditions would not be an act of negligence, while if the same act were ordered to be done in the light of other facts and circumstances it might amount to negligence. For instance, if the master merely desired this bolt
The court in the case of Barnett & Record Co. v. Schlapka (Ill.), 70 N. E. 343, l. c. 345, in discussing the exceptions to the safe place rule, said: “It will be found, on examination, that these cases apply only where the work being done necessarily renders the place dangerous, as in mining coal, blasting stone, wrecking buildings, and other matters of a like nature. In this case, the banks of the tunnel would have been given greater slope at a slight increase of the- expense, and this would have entirely obviated the danger, or the sides could have been shored throughout the entire length, as they were throughout a portion of their length.” In that case it was held that it being known to the master that by a slight increase in the expense the place could have been rendered reasonably safe, a failure to incur such slight expense rendered the place unnecessarily unsafe. The same principle, we think, applies to our case. The bolt was not being put in the
The plaintiff testifies that he did not know when he undertook the task that a platform had been ordered erected and was to be built.
In the case of Clark v. Johnson County Tel. Co. (Iowa), 123 N. W. 327, l. c. 329, the court in discussing this same principle, holds: “While it is true that a servant employed to make a dangerous place safe assumes the risk of the very danger which he undertakes to remove, he does not assume the risk of the method employed in doing such dangerous work if that method is unnecessarily hazardous in respects as to which the employee has no knowledge, provided that in these respects the employment could have been rendered less hazardous by the exercise of reasonable care on the part of the employer. ’ ’ The court in that case is-speaking of one of the exceptions to the safe place rule, and thus qualifies it.
We think that the rule which has been announced a number of times in this State and which was applied by this court in the cases of Rogers v. Packing Co., 185 Mo. App. 99, 170 S. W. 675, is applicable to this case, the rule being that if two ways are open to a person to use, one safe, and the other dangerous, the choice of the dangerous way with knowledge of the danger, constitutes negligence. This rule has generally been applied to servants where they have been held to be guilty of contributory negligence, but we see no reason why it should not apply as well to a master.
If the master’s order given under the evidence introduced by plaintiff was a negligent order, then the plaintiff did not assume any risk growing okt of such negligent order. This requires no citation of authorities at this time in this State.
Eespondent contends that because we held on the former appeal that the plaintiff assumed the risk of putting the bolt in the hole under the facts as there disclosed and the theory on which the plaintiff predicated the negligence of the defendant, we. cannot now say that in doing the very same act, so far as the plaintiff is concerned, he did not assume the risk of falling to his injury as he did. Eespondent, however, loses sight of the fact that the servant never assumes the risk of injury arising from the master’s negligence. In the former trial the master was charged with failing to provide a platform on which plaintiff could stand to do this isolated task. In the present case the charge is, not a failure to provide a platform, but in giving an order which subjected the servant to an unnecessarily hazardous risk in the light of the fact that the master knew a platform would soon be erected at the place.
It is contended by respondent that the plaintiff could have remained seated in the block and tackle on
We hold, therefore, that it is a question of fact to be determined whether the giving of the order under the circumstances detailed, amounted to negligence on the part of the master. If it did, the plaintiff did not assume the risk created by such negligence. And it is also a question of fact to be determined under the circumstances as to whether plaintiff1 was guilty of contributory negligence in undertaking to do what he did in the absence of any knowledge on his part that a platform would be erected at this place within fifteen or twenty minutes.
The judgment is reversed and the cause remanded.