156 Mo. App. 117 | Mo. Ct. App. | 1911
(after stating the facts).— I. Defendant first assigns as error the action of the court in refusing to sustain its demurrer to the evidence. We are convinced that the court’s action was proper.
It is the master’s duty to. use reasonable care to furnish and keep appliances reasonably safe for the purpose for which they are intended. This proposition needs no authorities to sustain it. And we have no doubt that the jury was justified in finding from the evidence in this .case that the insecurely fastened guard rail furnished by the defendant to the plaintiff was not reasonably safe for the purpose for which it was intended and that in furnishing it defendant failed to use reasonable care. Nor is it material in this case that re jointers were not generally or ordinarily equipped with guard rails. Having adopted a guard rail the law cast upon defendant the duty of using reasonable care
II. The defendant’s instruction numbered 4 was properly refused and this regardless of whether it correctly stated an abstract legal proposition. There was no evidence that the rejointer with the guard rail loosely fastened and wabbling was such as was ordinarily and generally used in the business in which the defendant was engaged. The evidence in that regard, as we understand it, referred solely to machines without guard rails. And as already indicated by us, the defendant’s duty in respect of furnishing a rejointer without guard rails is not material to the issues in this case. By adopting a guard rail it assumed a duty which might not otherwise have been cast upon it. If, then, this instruction related to the use generally and ordinarily of rejointers with loosely fastened and wabbling guard rails it was without any evidence upon which to predicate it; and
III. Defendant next contends that plaintiff’s instruction numbered 1 was erroneous in that it told the jury that if they found from the evidence that the injury complained of was the direct result of “such defective condition” of such guardrail, “then,” etc. The defendant asserts that by reason of the use of such language the instruction assumed that the guard rail was defective. There is no merit in this contention. In the preceding portion of the instruction it was made a condition to plaintiff’s recovery that the jury believe from the evidence that the guard rail of the machine in question was “out of order” and it is plain that it was this condition of being “out of order” that is referred to by the words “such defective condition.” The instruction did not assume the existence of the defective condition but submitted it as a question of fact to the jury.
IY. Defendant next complains that instructions numbered 1 and 3 were erroneous because they permitted the jury to take into consideration the plaintiff’s age in determining whether he was using ordinary care or was guilty of contributory negligence. There was no error in this. [Campbell v. St. Louis & Sub. Ry. Co., 175 Mo. 161, 174, 75 S. W. 86.] And if it be true, as defendant asserts, that in this respect they conflict with instructions numbered 7 and 10 given on behalf of defendant, then the latter are erroneous and it cannot avail defendant to complain of the conflict. [Hall v. Railroad, 219 Mo. 553, 591, 118 S. W. 56.]
The judgment is affirmed.