121 Mo. App. 58 | Mo. Ct. App. | 1906
(after stating the facts). — The contention that a verdict for appellant should have been ordered is rested by counsel on these propositions, affirmed by them to be sound: First, respondent possessed more skill and had enjoyed a longer experience in putting in sewers than the foreman and, therefore, cannot- be justified in relying on the larger experience of the latter and his assurance that the bulkhead was all right and required no bracing, or in obeying the order to go to work, which accompanied the assurance; second, respondent’s own testimony shows he did not-rely on the foreman’s assurance ; third, there were no signs to indicate the bulkhead was likely to cave and the foreman showed no lack of care, either in failing to detect the need of bracing it, or in refusing to furnish respondent bracing timber, on the latter’s statement that the bulkhead did not look safe. We suppose counsel take for granted that the facts required to support these propositions are conclusively established by the evidence. Under recent decisions of the Supreme Court, the defense is untenable that respondent voluntarily assumed the risk of tunnelling through the unbraced bulkhead, if he continued to work while apprehending danger. In so far as appellant was negligent in omitting to furnish respondent a safe place to work, it must answer for the consequences to him if his own negligence did not contribute to the injuries received. [Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Wendler v. House Furnishing Co., 165 Mo. 527, 65 S. W. 737; Blundel v. Elevator Co., 189 Mo. 552, 88 S. W. 103.] If the earth of the bulkhead was so loose as to unduly endanger respondent while working in the trench, and appellant fell short of ordinary care in leaving it unbraced, respondent did not assume the risk of its falling on him; that being a risk not usually incident to the
The third proposition is that no evidence was advanced to show the foreman was negligent in giving the assurance of safety to respondent and ordering him to ' proceed with his work — none to show a crack or flaw in the embankment; and hence the foreman was. justified in saying there was no danger. This reasoning is fallacious. An experienced and cautious person might have perceived danger of the bank falling though no crack was visible. If the soil was wet, loose and crumbly, danger was to be apprehended; and perhaps other conditions of the soil would suffice to give warning. The foreman swore he had made no examination of the part of the bulkhead which fell; a statement in itself going to show carelessness, if his attention was called to the matter by respondent’s expression of anxiety. Indeed, when material for bracing was at hand and was requested by a workman at the bottom of the trench, it is hard
It is said contributory negligence on the part of respondent was established because it was his duty to brace the bulkhead. This matter, too; was one of fact. The foreman admitted it was incumbent on him, if asked, to furnish bracing material; and further said he had supervised the putting in of bracing on the sides of the trench. Holloran swore all the bracing respondent and he did was under the immediate direction of the foreman, who ordered each plank put in place. To hold respondent is conclusively shown to have been guilty of negligence in failing to support the bulkhead, when his request for material to support it with was refused by the foreman, would be a harsh ruling.
We are cited to two decisions of the Supreme Court as supporting appellant’s demand for a nonsuit: Wojtylak v. Coal Co., 188 Mo. 260, and Knorp v. Wagner, 93 S. W. 961. In the first one, on facts somewhat similar to those before us, the Supreme Court did not nonsuit the plaintiff, but held his case was for the jury. The other was for injuries to the plaintiff, caused by an explosion of powder in a mine. The charge of powder had been put in a drill-hole a few days before, but had failed to explode; and plaintiff, when hurt, was engaged in drilling around the charge in order to extract it from the hole. He expressed a doubt about the safety of the operation to two vice-principals, or supervisors, and relied for recovery on alleged assurances from them that the operation was safe. The Supreme Court held that what one foreman said did not amount to an assurance of safety, and that the plaintiff failed to rely on the assurance of the other foreman, or even to obey his di
The first instruction granted for respondent declared it was appellant’s duty to furnish respondent a reasonably safe place to work; and that appellant was liable if the bulkhead was not properly braced, and, in consequence, was dangerous to work about, and Cooney the foreman knew, or, by the exercise of ordinary care could have known, those facts and have caused the bulkhead to be put in a reasonably safe condition; provided respondent. was himself in the exercise of due care, and provided further that the bulkhead fell on him in consequence of not being properly braced. The statement that it was appellant’s duty to furnish a safe place, was too strong; but the remainder of the instruction shows clearly that the extent of the duty intended to be required of appellant was to use ordinary care to furnish a safe place. No point was made against the instrutcion because of the inaccuracy of the first clause. The second instruction for respondent declared it was appellant’s duty to exercise ordinary care to furnish respondent a reasonably safe place to work and then' instructed regarding one of the acts of negligence averred in the petition, namely: that if the foreman knew, or by due care could have known, the trench was not reasonably safe, and by ordinary care could have made it reasonably safe by bracing the bulkhead, and under these circumstances, negligently caused respondent to work in the trench, or negligently failed to have the bulkhead braced, and on account of such failure, respondent, while in the exercise of due care on his part, was injured by the embankment falling on him, the verdict should be in his favor. Those two instructions are objected to on the ground that under the evidence it was erroneous to declare in the positive language used, that appellant was charged with the duty of fur
The damages assessed were moderate, if the testimony for the respondent regarding the extent of his injuries is true. His case impresses us as meritorious and the judgment will be affirmed.