60 Mo. App. 231 | Mo. Ct. App. | 1895
Lead Opinion
This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. The plaintiff had judgment in the court below and the defendant has appealed.
It is claimed by the defendant that the judgment ought to be reversed because the petition does not state facts sufficient to constitute a cause of action, in that no excuse is alleged for doing the work from which the injury resulted with the number of men therein charged to have been insufficient for the reasonable safety of those engaged in it. That pleading charges that the defendant carelessly and negligently failed to furnish a sufficient number of men to lift the rails and throw them from the track; that only three men were furnished when at least four were necessary to do the work with reasonable safety to defendant’s servants engaged in said work; that, in consequences, of defendant’s carelessness and negligence in failing to furnish a
It is the unquestionable law that it was the duty of the defendant to furnish a sufficient number of men to do the work in which the plaintiff was .engaged with reasonable safety to the plaintiff and his colaborers engaged therein. Thorpe v. Railroad, 89 Mo. 650; Stoddard v. Railroad, 65 Mo. 514; Fogus v. Railroad, 50 Mo. App. 250; Flike v. The Boston & Albany Railroad, 53 N. Y. 546; McKinney on Fellow Servants, p. 99, sec. 37. The petition alleged this duty and a breach thereof, which, coupled with the further allegation of an injury resulting from such breach, we think sufficiently stated a cause of action.
If the performance of this duty by the defendant was waived by the plaintiff or if the defendant was excused from its performance for any other cause, this was a matter of defense, to be pleaded in the answer. Under the allegations of the petition it was only necessary for plaintiff to introduce evidence tending to prove the breach of duty on the part of defendant as alleged in his petition and that such breach was the proximate cause of his injury. If the defendant, as was the case, relied on the claim that the insufficiency in the number of the men to do the work was obvious or patent and that the danger arising therefrom was of such character as to raise the presumption that the plaintiff by-continuing to do the work under such conditions assumed the additional or increased risk, then such claim was
The plaintiff’s evidence tended to prove that the number of men employed were insufficient to do the work in which he was engaged with reasonable safety and that, in consequence thereof, he was hurt. This, according to the principles just announced, was sufficient to establish his prima facie right of recovery, therefore the objection of defendant, taken by demurrer to the plaintiff’s evidence, to the effect, that it failed to prove any negligence of defendant or excuse on plaintiff’s part for doing the work with an insufficient number of men was properly overruled.
The defendant objects that the plaintiff’s instructions did not cover the whole case in that they failed to mention the assumption of the risk by the plaintiff. The first of these given for plaintiff told the jury that it was defendant’s duty to furnish a sufficient number of men to do the work of removing the rails with reasonable safety to its employees, and that if it failed so to do, and plaintiff was injured in consequence thereof, he was entitled to recover, provided he was in the exercise of such care as a reasonably prudent person would have used under like circumstances, and was not guilty of contributory negligence, as defined in the instructions. The second told the jury that, although the plaintiff might have believed that the number of men was insufficient to do the work with reasonable safety, yet, unless it appeared that the danger of doing said work with that number of men was so glaring that a man of ordinary prudence would not have engaged therein, then the plaintiff would not be prevented from a recovery on the ground of contributory negligence.
The defense interposed by the answer was that of •
The instruction given for defendant declared that, if plaintiff understood the nature and hazards of the work in which he was engaged, and the probable effect and consequences of doing the work with the number of men employed, and yet continued in the work, he was not entitled to a verdict; that, if he did anything a prudent man would not have done, or omitted anything that a prudent man would have done, and that any act or omission on his part contributed to his injury, he was debarred from recovering; that, if the injury was produced by the negligence of his colaborers, or if any act of his was contributory to it, the finding should be for the defendant; that, if men of ordinary care and caution would not have considered it hazardous to do the work with the number of men with which the plaintiff was doing it, then defendant could not be guilty of negligence in not employing a greater number of men. These instructions fully covered the grounds of defense relied on by defendant in the answer, and, as far as we can discover, are not repugnant to these given for plaintiff.
In the light of the authorities just cited we do not think the court erred in amending the defendant’s instructions numbers 3, 4, 5 and 6 by adding thereto a proviso, to the effect “that the jury must further find that the danger of doing said work with the number of men furnished was so glaring that an ordinarily prudent man would not have engaged in it before plaintiff could be debarred from recovering on account of his continuing in the work with knowledge that the force was insufficient.”
We do not believe 'that the other errors alleged to have been committed by the trial court against defend
Rehearing
ON EEHEAKING-.
A further consideration of this case has satisfied us with our conclusion as originally announced.
The petition is not fairly subject to the criticism made by defendant. We may freely concede the propositions of law advanced by counsel, to the effect that, if the petition, on its face, states those facts from which there necessarily arises the conclusion that the injury has resulted from plaintiff’s contributory negligence, or, his assumption of the risk of the act from which the injury resulted, he can not recover, unless he goes further and states further facts which would qualify or explain those already stated and thus relieve him from the rule. But the facts concerning the allegations of the petition are not as defendant has assumed them, or interpreted them to be.
The pleader, in proceeding to state plaintiff’s cause of action, alleges that the defendant negligently failed to furnish a sufficient number of men to lift the rails; that three men were all that were furnished, when, in truth, at least four men were necessary to do said work properly and with reasonable safety, etc. The plaintiff himself will, of course, he held bound by what is stated in his behalf in his petition. But the foregoing and similar allegations are not what defendant assumes them to be. The petition does not state that at the time plaintiff proceeded to do the work with two other men,
2. As to the evidence, we may concede that plaintiff had reason to believe three men were insufficient for the work, and that there was risk in undertaking the work with such limited force. But this is not enough to destroy plaintiff’s case, as a matter of law. The fact that the force was insufficient must have been so obvious as to prevent an ordinarily prudent person from engaging in the work. If, therefore,-the danger or risk in doing the work was not such as to threaten immediate injury, and, though in fact the force was insufficient yet sufficient enough to lead an ordinarily prudent person to believe that the work could be safely done by using care and caution, then, if, in the exercise of such prudence and care and caution, he proceeds to do the work, he is not debarred from recovering from the master for the injury received in such work. Hamilton v. Mining Co., 108 Mo. 364; Swadley v. Railroad, 118 Mo. 268.
The défendant has directed our ¡attention to some adjudications from other states, particularly Eddy v. Rogers, Texas, 1894, which support the criticism of the theory upon which plaintiff was allowed to maintain this action. In that case, the following rule is stated and applied to a case much like the one at bar, viz: “Where the servant has equal knowledge with the master of the danger incident to the work, he takes the. risk upon himself, if he goes on with it.” In some respects that may be said to be a proper statement of the law, as applied to the facts appearing in many cases. But it is a deceptive statement when applied to' other cases — to a case like the one under consideration. It is not necessary to discuss in this, case what equality of ground the master and servant occupy, as to judgment on the sufficiency of appliances for certain work. It is conceded by the plaintiff that four men could have handled the iron rails with reason
The opinion of Judge Rombauee in Fugler v. Bothe, 43 Mo. App. 62, which has been recently fully indorsed by the supreme court, is in no way opposed to the view we take of this case, as it is made by the facts which appear in the record. Judge Rombauee made no criticism of the following quotation which he took from Huhn v. Railroad, 92 Mo. 440: “But, if the servant incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonable to suppose that it may be safely used with great care, or skill, a different rule applies. In such cases, mere knowledge of the defect will not defeat a recovery.” In the Hulm case and many of the other cases of like character, it was not pretended but the master knew of defective instrumentality which caused the injury — in other words, the eases concede that the master and servant had “equal knowledge.” The facts in Fugler v. Bothe make a
It is not necessary to make any further mention of that part of defendant’s contention as to the distinction and difference between an assumption of risk and contributory negligence on the part of a servant, than to say that it is partly disposed of in what we have said as to the'petition. There are cases where a difference between these is quite easily seen. There are cases where the distinction is not so apparent, when, indeed, it becomes too subtle to be of practical importance. In this case, if there was anything to prevent plaintiff’s recovery, it was contributory negligence, and that was pleaded as a defense and submitted to the jury.
In our opinion, the evidence as to the number of men which had been employed by defendant in this work was properly admitted. It had a tendency tó show the number necessary, and likewise bore on the question of defendant’s negligence. We are satisfied that a case was made for the verdict of a jury and that the trial was properly directed by the court. Judgment affirmed.