120 Mo. App. 478 | Mo. Ct. App. | 1906
(after stating the facts.)
As to the last proposition, we remark that if the negligence of the defendant caused the accident, then the plaintiff did not assume the risk, according to the current decisions of the Supreme Court. [Blundell v.
We find no evidence to show the truck was badly constructed in itself and for use on a smooth floor. There may have been negligence in loading too many sheets of iron on it, and it looks a great deal like overloading had much to do with the accident. Negligence in that regard was not charged, nor is there such conclusive proof that the accident was due to such negligence as would justify us in denying a recovery on the negligence actually charged. Now assuming that the floor was rough, with many holes in it, as the evidence tends to prove, the question in this connection is, could the jury reasonably infer from the evidence that the machine, constructed as it was and with the floor in that condition, constituted a failure on the part of the defendant to furnish plaintiff a reasonably safe appliance to use and a reasonably safe place to work? As said, the truck itself might have been safe enough on a smooth floor, and the floor might have been safe enough with a truck half as high as this one and of the same dimensions, or the same height and twice the length and breadth. But the truck plaintiff was using was intended to be rolled over a floor with holes in it wherein the castors were liable to catch; and, considering its heighth and the size of the truck’s base in proportion to the size of the top, we think the inference was fair that it was topheavy, unstable and likely to topple the iron off if a jostle occurred' by a castor sinking into a hole in the floor, and thereby injure the employees who were using it. The danger, too■, was not remote and unlikely to be realized until an accident happened. It could be foreseen and prevented. [Anderson v. Box Co., 103 Mo. App. 382, 77 S. W. 486.] In other words, the machine and the floor might well be found not to constitute performance by the master of his duty to use reasonable care for the safety of his servants in the appliance fur
The court gave liberal instructions in favor of the defendant on these points; advising the jury in the eighth instruction for the defendant that it was not bound to furnish plaintiff a truck which was absolutely safe and from which pieces of iron could not slip, but one which was reasonably safe if plaintiff exercised ordinary care; and in the ninth instruction for defendant the same rule was laid down regarding the floor, the jury being told that defendant was under no obligation to furnish plaintiff a floor which was absolutely smooth or on which the truck could not be overturned. We agree to these propositions of law, but think it was for the jury to say whether or not the floor was reasonably smooth and the truck reasonably safe when used together ; and if they were not, whether the defendant had been guilty of want of ordinary care in not making them reasonably safe. [Henry v. Railroad, 109 Mo. 488, 19 S. W. 239.]
No witness swore positively that a castor sank into the knot hole which was at the spot where the machine turned over. Many witnesses swore there was a hole there and that the machine was lying over it after it fell. It would be nearly impossible for a bystander to see a castor in the hole unless it happened to lodge there. But as the castors were two inches in diameter and the knot hole an inch and a quarter, the machine might turn over by the jostle caused by one of the castors sinking into the hole, and the castor rise out of the hole when the machine fell. In view of the testimony going to show the hole was there, that the machine was being steadily moved and without jerks, and that all at once it jostled and fell, we think the jury were entitled to infer that it was overturned by a castor getting into the hole. Juries must often reason according to probabilities; drawing an inference that the main fact in issue existed, from col
The judgment is reversed' and the cause remanded.