195 Mo. 75 | Mo. | 1906
— This cause is here upon a writ of error sued out by the plaintiff for the purpose of having the judgment and proceedings of the Daviess Circuit Court, in the above cause, reviewed by this court.
This is an action for personal injuries, and is predicated upon substantially the following state of facts:
On the 22d day of March, A. D. 1900, and prior thereto, defendants M. W. Lawrence and John J. Enyeart were engaged in the sale of hardware, implements, buggies, etc., at Gallatin, Daviess county, Missouri. The hardware was kept in the first floor of the building on the east side of the square, and the buggies, after being uncrated and ready for sale, were kept in the second story of the building across the alley some
Tbe negligence complained of is thus stated in the petition: “That on tbe 16th day of June, 1900, de-. fendant Thomas Crain was tbe owner of tbe buildings occupied by said defendants Lawrence and Enyeart in conducting their said business, and was for a long time prior and a long time after said date tbe owner thereof, and tbe landlord and lessor of said firm for tbe said purpose of conducting said business.
“That it was tbe duty of said Crain as said landlord and lessor, and tbe defendants Lawrence and Enyeart as well, to put tbe said premises and keep tbe same in reasonably safe condition for tbe purpose and use for which they were let to and used by said defendants Lawrence and Enyeart, their agents and servants.
‘ ‘ That tbe buildings occupied and used by said last-named defendants Lawrence and Enyeart, in conducting their said business, consisted of two two-story buildings with a stone-paved alley or passageway between ■the same. That tbe upper stories of tbe said two buildings were used by said defendants as storage and salesrooms in and about their said business, and connection
“That it was the duty of said defendants Lawrence and Enyeart, and of said Crain as well, to see that said viaduct, bridge, or passageway was in a reasonably safe condition, for which, as they and each of them well knew, it was to be, and was so used, and keep the same in such reasonably safe condition for such use.
‘ ‘ The plaintiff was in the month-----, 1900, and a short time prior to the 16th day of June, 1900, employed by defendants Lawrence, and Enyeart, as clerk and salesman in and about their said business and entered upon the discharge thereof.
“ That on the said 16th day of June, 1900, the said viaduct, bridge or passageway was in a rotten, unsafe and dangerous condition for use for the purpose for which it was let and used, which rotten, unsafe and dangerous condition all of said defendants well knew, or by the exercise of reasonable diligence might and would have known. . . . That the part thereof which by reason of its said condition gave way and caused plaintiff’s fall as aforesaid, was the guard-rail or banister and rotten parts thereon unknown to plaintiff, all of which were rotten, insecurely fastened and unsafe.”
To this charge of negligence the defendants filed the following answer:
“Come now defendants and for their amended answer to plaintiff’s petition herein deny each and every allegation therein contained.
“Further answering, defendants say that plaintiff’s injuries, if he was injured, were caused by the breaking of a certain guide-rail, built of light two-by-four-inch pine stuff, the purpose thereof being to mark the sides of a certain bridge or viaduct constructed*83 across the alley, and connecting the store or salesroom in which defendants Lawrence and Enyeart were doing business and the wareroom in which their surplus stock was stored; that said bridge or viaduct was built solely as a passageway between said storeroom and ware-room; that said guide-rail was not built to sit on or lean against, but was built and solely intended as a guide-rail to mark the sides of said bridge or viaduct to prevent persons thereon from walking thereoff; that plaintiff had been employed for a long time, to-wit, about six months, by said defendants Lawrence and Enyeart; that during all that time he had worked in and about said premises and well knew that said guide-rail was built solely for the purpose of preventing persons on said bridge or viaduct from walking thereoff, and solely to mark the sides thereof, and well knew that said guide-rail was not built or intended as a seat to sit upon, or to bear weight;-that said plaintiff had daily opportunity to see and observe said guide-rail; that he knew or by the use of ordinary care might have known the condition thereof; and that the defects therein, if any, were fully apparent to him; that his opportunity for knowing the condition thereof was equal to that of defendants, and that at the time of the injury, if any, plaintiff was sitting and bearing his weight on said rail, well knowing at the time that it was not constructed for or intended for that purpose.
“And for further answer defendants say that plaintiff’s injuries, if any he received, were due to and 'caused by plaintiff’s own negligence, carelessness and want of due care contributing thereto.
“And having fully answered, defendants ask to go hence with their costs in this behalf laid out and expended. ’ ’
It is unnecessary to give a detailed statement of the testimony. It will suffice in order to dispose of the legal propositions presented, to say that the testimony
It is conceded by plaintiff in error that the plaintiff testified in this cause substantially as follows, as to this accident: Pie said: “In standing there talking to Mr. Musselman about the buggies I backed up against the banister and I started to sit down and may have got down, . . . still talking, you understand, not thinking that I was going, and over it went. I went over backwards into the alley. ... I could not say positively that I sat on- the railing. I know I started to sit down and may have gotten my weight on the railing. I was talking to Mr. Musselman about the buggy deal and was not thinking of anything else. ... I never looked to see whether the banister was cracked or split. If I had taken the pains to have examined it, I could have seen, but I never thought about doing it. . . . I don’t absolutely know whether I sat down on the banister or not. Know I started to and that it broke. .... I know I started to sit down and might have gotten my weight on the banister. Would not swear that I did not.....About selling that buggy was what I had in my mind. . . . There was nothing hidden about it that I could not have seen if I had wanted to examine it. But I did not do it. Supposed that the place was safe. It was not absolutely necessary for me to sit down there in discharging my duties. It is true that they were not paying me a salary to go out there and sit on that railing. I did not know anything about whether it was put there to sit on. Of course, it was not put there for a seat. Did not think about that. Was not discussing in my mind as to whether this thing was put there to sit on or not to sit on. The fact is that it was there and I backed up against it to sit down on it, just like any other man would have done under the same circumstances. I know and you know that any other' man would have done just as I did under the same circumstances. . . . Nobody directed me to sit
At tbe close of plaintiff’s evidence tbe court sustained a demurrer to tbe evidence, as requested by defendants, and instructed tbe jury that plaintiff was not entitled to recover. Plaintiff took a nonsuit, with leave to move to set tbe same aside, and judgment was rendered in favor of defendants.
Plaintiff in proper time filed Ms motion to set aside tbe judgment of nonsuit and for a new trial, wbicb motion was by tbe court overruled.
Upon tbe judgment as heretofore indicated plaintiff sued out of tMs court a writ of error, and the cause is now before us for consideration.
OPINION.
The record in this case presents for our consideration but one legal proposition, and that is in respect to the action of the court in sustaining the demurrer to the evidence interposed by defendants at the close of plaintiff’s case.
Plaintiff in this action seeks to recover damages for personal injuries received while in the employ of defendants by the use of a viaduct provided by defendants in the transaction of their business. This viaduct or passageway was used by defendants for a passage or walkway from their main store building to the buggy-room; it was built across an alley or open space about sixteen feet and was used by the employees of the defendants in going to and from the main building to the room in which buggies were kept in showing and selling to customers buggies located in that room. It was erected in 1898 during the occupancy of the premises by a Mr. Pierce ; it was built by the use of three
We have carefully considered the disclosures of the record before us and have read in detail all of the testimony developed at the trial, and we are unable to conceive upon what theory plaintiff can maintain this action, and have reached the conclusion that the court very properly sustained the demurrer to the evidence. It will be observed that in the statement of the cause in the petition the plaintiff alleges that this viaduct was rotten and unsafe, and by reason of the negligence of defendants in failing to keep it in proper repair the plaintiff received the injuries complained of; but when we reach the testimony upon which the plaintiff seeks a recovery, the record is absolutely silent as to any defect in the viaduct which caused his injuries, except the defect in the banister or railing. It is not pretended
There is no dispute as to the rules of law applicable to the relation of master and servant. The law upon that subject is firmly established by the uniform and unbroken line of decisions in this State. That it is the duty of the master to use reasonable care and prudence for the safety of those in his service in providing them with machinery and appliances reasonably safe and suitable for their use, and that the master will be held liable for any injury from any accident that may happen through any defect in the machinery or appliances provided by him for the use of his servant, which was or ought to have been known to him, no one will seriously question. On the other hand, it is equally well settled that the master is not liable for the negligent and careless use of appliances provided for him by the master, or in using such appliances in a manner or for a purpose for which they were not intended or designed.
Applying these well-settled rules of law to the conceded facts in this case, there is no escape from the conclusion that whatever injuries plaintiff received were the result or his own carelessness and negligence in the use of a part of an appliance provided for him by the defendants.
The floor of this viaduct was four feet wide, and it was such floor that was designed as the passageway or walkway for the use of employees in going to the buggy-room or returning therefrom, and so long as plaintiff was walking upon this floorway or standing upon it he was entirely safe, and it was not until he un
In order to maintain this action the negligence of the defendants must be the proximate cause of the injury, and when we look to the evidence as to what was the proximate cause of this injury, there is but one answer, and that is the improper, careless and negligent use of a railing or banister by the plaintiff for a purpose not intended or designed in the erection of such railing or banister.
In York v. Railroad, 117 Mo. 405, it was ruled by this court that the plaintiff was not entitled to recover for injuries received in the use of a push-car in a man
In Sindlinger v. Kansas City, 126 Mo. 315, plaintiff sought a recovery from the defendant city for injuries received hy reason of a defective railing or banister on a viaduct in one of the streets of said city. Gantt, J., speaking for this court, in that case, very clearly indicated the views of this court as to the purposes of a railing or banister on the side of a viaduct. He said: ‘ ‘ The railing was put there as a warning of the danger and to prevent those who should use the viaduct in an ordinarily careful manner from being hurt. It will be remembered that the way was constructed solely for pedestrians. It was not to .he supposed that grown-up men would expect to propel themselves against it in running races, and of course was not constructed with such a view. But that it was entirely sufficient for the purpose for which it was erected we think clearly appears, not only from the plaintiff’s evidence, but was abundantly established hy that of defendant.” So it may he said in the case at bar, that in the placing of this railing or banister on the sides of this viaduct it was not to he supposed that employeés or any other person
In Stickney v. City of Salem, 3 Allen 374, the Supreme Court of Massachusetts, in an opinion by Chief Justice Bigelow, held that the city was not liable in damages to one who, while stopping in a highway for the purpose of conversation, leaned against a defective railing and was injured. He said: ‘ ‘ The legal obligation of keeping a sufficient railing upon a highway is imposed only when it is necessary to mark the limits of the part of the road within which persons may safely travel, or to furnish a guard against dangerous places, so that proper protection may be afforded to those who, in the exercise of due care as travelers, while passing or standing on the way, might otherwise be exposed to accident or injury;” and a demurrer to the evidence was sustained.
We see no necessity for pursuing this subject further. The plaintiff in this cause, as disclosed by the evidence preserved in the record, was entirely familiar with the use of this viaduct; he used it frequently for a considerable length of time; he concedes that he knew that this railing or banister was not placed on the sides of the viaduct to be used as a seat or a resting place, and that it was not intended or designed for that purpose ; hence the use of it by him in the manner disclosed by the evidence, which resulted in the injuries complained of, must be attributed to his own carelessness and negligence, and this being so, the defendants should
Tbe judgment in this ease should be affirmed, and it is so ordered.