109 Mo. App. 600 | Mo. Ct. App. | 1904
Action to recover damages for personal injuries resulting from the negligence of the defendant. The petition alleged that the defendant maintained and operated a plant for the manufacture of brick in which said plant it used certain hoppers or feeding bins in which dirt was thrown and rolled into fine dirt which fell below said hoppers or bins and then was caught up by certain cups fastened to an endless chain or belt, propelled by steam, and carried upward to a point where it was dumped into another hopper or bin. That these cups so fastened to said endless chain or belt are enclosed at the bottom by means of a shaft made of lumber. That said shaft and said cups on said endless chain or belt were so negligently built and constructed, kept and maintained that the same during the progress of running said machinery would become clogged and stopped at the bottom of said shaft by means of the dirt which would accumulate at said point. That the bottom of said shaft was under ground and so enclosed as to render the place exceedingly dark. That during the conduct and operation of said plant
The answer consisted of a general denial to which was added the pleas of contributory negligence and assumption of the risk. There was a trial by a jury and at the conclusion of all the evidence the defendant interposed a demurrer thereto which was by the court denied.
The defendant contends that the court erred in giving an instruction for the plaintiff which told the jury that if it “shall believe from the evidence in this case that the plaintiff was an employee of the defendant, and that he was engaged in feeding one of the defendant’s bins at its brick factory, and that while so engaged the machinery conveying the dirt up to the bin became clogged up and stopped and it became necessary for the plaintiff to unstop the same, and that it was a part of his duty to do so, and in doing so he went down to the bottom part of said shaft for that purpose, and that at the bottom of said shaft it was dark and not a reasonably safe place to work,- and the defendant? knew of such conditions, and that while in the act of removing said obstruction, in a careful and prudent manner, the machinery commenced suddenly to revolves and caught the plaintiff’s hand and injured it, and that it was occasioned because the place was dark and not a reasonably safe place to work, then you will find a verdict for the plaintiff, unless you further believe and find from the evidence that plaintiff, himself, was guilty
The common law enjoins upon the master the duty to furnish the servant a place where the work is to be carried on that is reasonably safe. Many of the adjudications supporting this statement of the law will be found cited in Musick v. Packing Co., 58 Mo. App. 323; Zellars v. Water & Light Co., 92 Mo. App. 107, and in Thompson on Negligence, Rules, etc., p. 1405, et seq. But this rule is not without its exceptions, one' of which is that where the place in which the servant is required to work the conditions are continually changing, or where the changing conditions are created by him, as, for example, when he is engaged in the work of railway construction, street grading, the erection of buildings, and the like, then the place is required to be as safe as such conditions will permit. The application of this exception is well illustrated by the two cases just cited. This case falls within no exception of the rule. Here, the place where the plaintiff was required to work was located in a manufacturing establishment. It was fixed stationary and not shifting. Here there was no changing of the existing conditions and therefore the rule and not the exception was applicable.
The petition is not a pleading that one would at once recognize as having come from the hand of an accomplished artist, but while this may be so we think it will be seen from an examination of so much of it as we have hereinbefore transcribed states a good cause
It appears from the evidence that the machinery used in the shaft was defective and out of repair and that it very frequently became so choked and clogged by the fine dirt which accumulated at the bottom of such shaft that it would not run until .such accumulation was removed. The bottom of the shaft was in a sub-cellar which was dark, and without the help of artificial light the physical conditions there could not he discerned. The defendant sometimes furnished its employees descending to the sub-cellar to remove the clog in the machinery a torch to light the cellar. At the time the plaintiff was hurt there was no torch accessible to him. The plaintiff who was placed in charge of the elevator machinery in the shaft finding that it would not further run because it was clogged at the bottom of the shaft, went down there as' he had many times before, and there in the darkness then prevailing took a spade and proceeded to remove the cause of the clog, and while so doing the machinery started and caught his shovel, whereby his fingers were jerked in and injured by the cups or buckets. On the day of the plaintiff’s injury the machinery had become clogged and had stopped two or three times before the time plaintiff was injured. The evidence was to the further effect that the plaintiff on account of the darkness could not see the bottom of the shaft and that he had to simply feel to get the dirt that had run down the shaft and stopped the machinery. If the bottom of the shaft where it was the duty of plaintiff to go to perform the work there required was a place that was rendered dangerous and unsafe by- the neglect of the defendant to light the same and that the plaintiff was injured in consequence of such neglect, then there is liability.
The master’s duty extends to the procurement of and keeping in repair, all the appliances necessary for the safe performance of the servant’s duties, and any
Perceiving nothing in the record requiring that the judgment be overthrown, it will accordingly be affirmed.