126 Mo. App. 377 | Mo. Ct. App. | 1907
(after stating the facts) — 1. That Eugene Morton lost his life through the culpable negligence of someone is beyond cavil or question; it is also equally clear, on the evidence furnished by respondent, that he was guilty of no negligence that directly contributed to his injury. Appellant’s contention is that Morton’s death cannot be attributed to its negligence, for the reason, being neither a manufacturer nor mechanical engineer, it did its full duty to furnish Morton a reasonably safe place to work, by contracting with experienced and reputable people in the business, to furnish and install its machinery and appliances under the supervision of competent mechanical engineers employed by it, and by having installed blow-off tanks of approved patterns and in common use, equipped
In Northern Pacific R. R. Co. v. Herbert, 116 U. S. l. c. 647-8, it is said: “It is the duty of the employer to select and retain servants who are fitted and competent for the service and to furnish sufficient and safe materials, machinery, or other means, by which it is to be performed, and to keep them in repair and order.This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no- duty required of him for the safety and protection of his servants can
In Bartley v. Trorlicht, 49 Mo. App. l. c. 231, Judge Thompson said: “The absolute duty of exercising reasonable care, to tbe end- that the machinery and appliances placed in the hands of his servants will not endanger their lives or members, rests upon him equally, whether he attempts to exercise that duty through an independent contractor, through another servant, or by himself in his proper person.”
In Sackewitz v. American Biscuit Co., 78 Mo. App. l. c. 154, it is said: “While for many purposes the relation of independent contractor will be recognized, it cannot be sustained to shield the master from those positive personal obligations cast upon him by his relation to his servant.”
To apply the relation of independent contractor or that of a manufacturer to a contractor for structures or appliances, for the purpose of absolving the master from his duty to exercise reasonable care to provide his servant a reasonably safe place to work and with reasonably safe tools to work with, would be to leave the servant remediless if injured by reason of some dangerous property of tool or appliance, or some danger or defect in the place furnished, him to work, since he would have no remedy against the independent contractor or the manufacturer who supplied the defective tool or appliance, or erected the defective structure. See note to Cleveland, C. C. & St. L. R. Co. v. Berry, 46 L. R. A. 38-45; The Joseph B. Thomas, Ib. 117-19. And it is -a just rule which holds appellant liable for the death of Morton, if appellant was negligent in furnishing him an unsafe place to work, although it purchased the blow-off tanks from a reputable manufacturer and employed competent steam fitters to connect them with the boilers and to provide proper vents and outlets,
2. It is contended that the court erred in refusing the following instruction asked by appellant:
“In reference to the charge that the blow-off tank mentioned in the evidence was made of improper material, the court instructs the jury that if you believe from the evidence that tanks of the same material were in general use at the time in question, and that this was a standard tank, then and in that case there was no negligence on the part of defendant in using that kind of tank.”
In support of this contention appellant cites Min
We conclude that the court did not err in refusing appellant’s instruction and affirm the judgment.