Jones v. Pioneer Cooperage Co.
114 S.W. 94
Mo. Ct. App.
1908
Check Treatment
BLAND, P. J.

(after stating the facts). — 1. At the close of plaintiff’s evidence, defendant moved the court to instruct that he could not recover. The refusal of the court to grant this instruction is assigned as error. The contention is that plaintiff’s injury resulted from overexertion in trying to do something beyond his strength and was the result of his own overestimation of his strength; if this contention is borne out by the' evidence then plaintiff cannot recover. [Haviland v. Railway, 172 Mo. 106.] We do not understand that plaintiff predicates his right of action on the fact that he was ordered by the foreman to do work beyond his strength, but on the fact that reasonably safe appliances were not provided for doing the work, in that defendant failed to provide some sort of scaffolding at the high ricks for the men to ascend to place the bolts, or to place a man on top of the ricks to assist the carrier to land the bolts. Plaintiff testified that to land the bolts on top of the rick he (as he had been instructed to do by the foreman) placed one end of the bolt against his chest and, holding to the other end with both hands, shoved the bolt on top of the rick; that he had the bolt in this position, preparatory to landing it, when he stumbled by his foot being caught by something on the ground, causing him to rush forward against the rick and .mash his thumb. The position in which plaintiff testified he was required to hold the bolt and lift it to the rick was one of strain. Had scaffolding been provided, the bolt could have been landed on the rick from the shoulder of the carrier and there would have been no necessity of shifting it from the shoulder to the position plaintiff described in order to place it on the rick, hence plaintiff’s exposure to danger of overstrain in the performance of his work was greater than it would have been had defendant provided scaffolding, or other elevation which plaintiff could have mounted to land the bolts on the *330rick. But the injury did not result from overstrain. It was caused by plaintiff catching his foot in some object on the ground which caused him to pitch or stumble forward against the rick, catching his thumb between the rick and the bolt he had in the position described, and we think the proximate cause of the injury was the object in which he caught his foot, not the absence of scaffolding or the height of the rick. If so, then plaintiff cannot recover, for the reason the petition does not allege that the ground over which he was required to travel from the car to the rick was in an unsafe condition, or obstructed by litter or other objects which caused him to stumble or pitch forward against the rick. The labor plaintiff was required to do was very simple and of every ordinary character’, requiring neither skill or much experience. It was not attended by any apparent danger, or any danger that any reasonable man would or could foresee. Only such risk as was incident to the employment could be foreseen or anticipated. The risk was as well known, was as obvious to plaintiff as to defendant, and was therefore assumed by plaintiff. [Knorpp v. Wagner, 195 Mo. 637; Beasley v. Linehan Transfer Co., 148 Mo. 413; Bradley v. Railway, 138 Mo. 293; Lee v. Railroad, 112 Mo. App. 372.] We think on plaintiff’s own evidence the injury was the result of mere accident, not attributable to any negligence of defendant, and that defendant’s demurrer to the evidence should have been given.

The judgment is reversed.

All concur.