Peppers v. St. Louis Plate Glass Co.

165 Mo. App. 556 | Mo. Ct. App. | 1912

Lead Opinion

CAULFIELD, J.

(after stating the facts). — I. The trial court very properly refused to give the demurrer to the evidence. The testimony certainly tended to prove that the shifting about of these immense tables amid the roaring noise and innumerable activities of a great shop was complex and dangerous, peculiarly dangerous as to an employee working under them, and that it was feasible and proper by rule, regulation, sign, signal or watchman to advise its motormen engaged in moving the tables of the whereabouts of employees working under them or to warn such employees of the approach of danger'. This was sufficient to show a case where the duty to make such rule or regulation or provide such sign, signal or watchman, rested upon the employer (Reagan v. Railroad, 93 Mo. 348, 6 S. W. 371; 1 Labatt on Master & Servant, sec. 219), and whether the defendant was guilty of negligence in that respect was a question for the jury. [Reagan v. Railroad, supra.]

Defendant appears to concede this, but asserts that by reason of plaintiff’s brief employment around the shop he must have known that no such precaution had been taken by his employer for his protection, and that, being possessed of such knowledge, his going and remaining under the table without taking precautions on his own account against being injured by a movement of the table, was contributory negligence' as matter of law. "We doubt whether the proof is conclusive that the plaintiff had the knowledge which defendant would thus impute to him, but if it be granted that he.had such knoweldge, it does not necessarily follow that he was guilty of negligence as matter of law. In order to convict the plaintiff of negligence as matter of law in not taking precautions against being injured by the moving of the table, it should conclusively appear, not only that he knew, or in the exercise of ordinary care should have known, that no one would take such precautions unless he did, but also that he knew or in the exercise of ordinary care should have known, that the table was liable to be moved during the time he would be, engaged in his work under it. In other words he must have known not only of the defect but of the present danger to be apprehended' therefrom. [Heberling v. City of Warrensburg, 204 Mo, 604, 614, 103 S. W. 36.] Now it was the custom, as plaintiff knew, not to move a table as long as it remained “unstripped” of glass, and when he went under this table it was “unstripped,” and was not being “stripped;” neither was there anything to indicate that it was about to be “stripped.” There is nothing in the record to show that plaintiff knew or by the •exercise of ordinary care should have known that the table could be stripped and made ready for moving during the twenty-five minutes he would be at work. The presumption, which the law indulges, that he was in the exercise of care for his own safety, negatives fhe idea that he had such knowledge or was negligent in hot having it. The burden was on the defendant to prove the contrary and it failed to sustain it. It was certainly entitled to nothing more than to have the question of plaintiff’s contributory negligence submitted to the jury, as was done. We regard this conclusion as being in perfect accord with the third instruction given at the instance of the defendant, which defendant’s counsel say in their brief is a correct statement of the law under the evidence.

II. The defendant’s contention that instruction No. 3, given at its instance, is in conflict with the first four instructions given at the instance of plaintiff is without merit. The first three of plaintiff’s instructions dealt with defendant’s negligence alone except that they made plaintiff’s recovery dependent upon his having been injured “without any fault on his part.” The fourth-declares nothing more than that an employee does not assume the risks which are the consequences of his employer’s negligence, a doctrine well established in this state. The defendant’s instruction No. 3 properly deals with the question of plaintiff’s alleged contributory negligence and negatives his right to recover if found guilty thereof. We have discovered no conflict between these instructions and defendant lias failed to suggest wherein such conflict exists.

III. The trial court did not err in refusing to give defendant’s refused instructions Nos. 2 and 3. The question was not of assumption of risk but of contributory negligence which defendant’s given instruction No. 3 properly presented to the jury.

IV. We need not determine whether the defendant’s instruction No. 6 was or was not erroneous. It is sufficient to say that without it the jury was fully .and properly instructed as to every phase of the cáse.

The judgment is affirmed. Nortoni, J., concurs. Reynolds, P.. J., dissents in separate opinion.

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Dissenting Opinion

DISSENTING OPINION.

REYNOLDS, P. J.

I am unable to concur in the conclusion arrived at by my learned associates in this case.

Plaintiff’s o.wn testimony shows that he knew the conditions sourrounding the work in which he was engaged ; knew; that this motor car was apt to come down its tracks, be attached to the stripping table under which he was working at any time and to move and draw it out. He knew that no watchman was kept at the table, nor on the motor, to warn those at work; he had himself worked on the motor a, few days before, in pulling it down the track, and knew how it was operated. He sat or crouched under the stripping table with his leg across the track over which that table was liable to be moved at any time. He was working in a shop where the noise of machinery was bound to render it difficult to hear the apparoch of the motor. He knew that no watchman was there to warn him of its approach, and hence he was bound to look out for his own safety under surroundings, all of which were apparent and well known to him. It was not necessary that he should he a skilled employee, or one of long experience in the work, to know its dangers. To a man of the most ordinary sense and prudence, it must have been known that the place an,d conditions under which he was at work required that a lookout be kept for his own safety. He had no right to be lulled into security by waiting for the warning voice of anyone; he knew no one on guard for that purpose; that no warning was ever sounded, and that the motor moved up and down its tracks without anyone being there to give notice of its approach. All this is clear from plaintiff’s own testimony. I am compelled to the conclusion that his own carelessness directly contributed to his misfortune.

But plaintiff says he was so engrossed in his work that he neither watched nor listened.

In McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S. W. 872, at pages 107 and 108 it is said: “It was the duty of the deceased to use his sense of sight and sense of hearing for his own protection. He had no right to become so engrossed in his work, if he was so engrossed, as to be negligent of his own safety.” That is the rule recognized in many cases.

Nor was the employer guilty of actionable negligence toward this plaintiff by reason of a failure to have watchmen stationed around the works to give warning of the approach of the motor. Plaintiff knew the conditions under which the work was there conducted ; he knew that the car at which he was working was liable to be moved at any time and without warning. Regard for his own safety should have prevented him from throwing his leg across the track over which he knew the wheels of the car were bound to pass if that car was pulled out by the motor. Under such conditions the employer “is not required to keep special watch over his employee and warn him of common dangers to which he may be subjected in the performanee of bis ordinary duties.” [1 Labatt on Master and Servant (Ed., 1904), sec. 209a.]

In Ring v. Mo. Pac. Ry. Co., 112 Mo. 220, 20 S. W. 436, our Supreme Court bas said (l. c. 230), speaking of laborers on a railroad track: “Tbe situation was not one of unusual danger, nor one not ordinarily incident to tbe work they were employed to perform. ... He (plaintiff) bad worked on tbe road nine or ten years, with trains passing frequently during every day, and was famaliar with all tbe dangers; no rules were shown which absolved tbe laborers from watching for themselves for passing trains, or that imposed upon tbe foreman, tbe duty of watching and warning them of tbe ordinary danger from passing, trains. Under these circumstances a rule that would impose upon tbe master tbe duty of watching each individual workman, and warning him of tbe passing of every train, and of keeping him out of danger, would be an abrogation of tbe well-recognized and necessary rule, that tbe servant, when engaged in bis master’s service, assumes all tbe risks ordinarily incident to the discharge of tbe duties be undertakes to perform; and would make tbe master an insurer of tbe safety of bis servants.” It is true that in the case at bar, tbe employment bad been bis but a few days before tbe accident, but tbe evidence of plaintiff' himself shows that it bad been long enough to acquaint him with tbe exact conditions attendant upon it, that he was familiar with tbe dangers of bis situation, and here, as in tbe Ring case, not only were no rules nor even a custom shown that absolved tbe laborers in this plant from watching for themselves for tbe approach of tbe motor. So far from that being tbe case, plaintiff counts on tbe absence of rules as negligence. I cannot agree that it was, no rule or custom providing for them.

It is true that our Supreme Court in Reagan v. St. Louis, K. & N. W. Ry. Co., 93 Mo. 348, 6 S. W. 371, a case cited by my Brother Caulfield, does lay down the rule that one who employs servants in a complex and dangerous business ought to prescribe rules sufficient for its orderly and safe management, and that his failure to do so is a personal neglect for the consequences of which he will be liable to his servants. But I do not understand that this plaintiff was employed in a complex or dangerous business, in an employment any more dangerous than any employment connected with the operation of machinery can be said to be dangerous. It seems to me that the employment in this case is more of the class referred to in Ring v. Mo. Pac. Ry. Co., supra, than in Reagan v. St. Louis, K. & N. W. Ry. Co., supra. Hence I think that the rule laid down in the former case is the one that should here govern.

Learned counsel for respondent refer to Dakan v. Chase & Son Mercantile Co., 197 Mo. 238, 94 S. W. 944, and like cases as prescribing the duty of the employer to furnish a safe place to work. That duty is clear, but the facts in judgment in the Dakan ease are entirely different from those at bar. Moreover, those counsel at the trial abandoned the assignment of negligence founded on the charge that plaintiff had been sent into a dangerous and perilous place to do his work. In their printed brief and argument counsel say in so many words: “The place into which the plaintiff was sent was perfectly safe, and would so ap: pear to an ordinarily prudent man, until, without notice to the plaintiff, it was suddenly rendered perilous by a negligent act of the master.” The negligent act of the master here complained of is the failure to warn plaintiff or to warn those in charge of the motor of plaintiff’s presence. As before remarked, even conceding such failure, plaintiff knowing' that no rule re: quired such warning to be given, was not absolved from ordinary vigilance against an obvious danger. He assumed its risks.

I think the demurrers should have been sustained and that the judgment of the circuit court should be reversed.