99 Mo. App. 396 | Mo. Ct. App. | 1903
Minority Opinion.
Action to recover damages for personal injuries resulting from tbe negligence of tbe defendant. At tbe conclusion of all tbe evidence in tbe case tbe defendant requested an instruction in tbe nature of a demurrer, which was by the court refused. There was a submission of the case under instructions to the jury whose verdict was for plaintiff, and thereupon judgment was accordingly given, and defendant appealed.
The evidence for plaintiff tended to prove about these facts, viz.: The defendant, an incorporated mercantile company, was engaged in carrying on a large and extensive department store wherein it employed something like six hundred and fifty clerks. In the year 1899, in consequence of a disastrous fire, its business was for a short time interrupted and suspended. In tbe month of November of that year it secured another building in which to resume its business. It had determined to open its store in its new place on December 1, and with that view had, a few- days prior thereto, engaged the services of a great many female clerks to help carry on its business then about to be resumed. The day before the opening the plaintiff was employed by defendant to work in the gentlemen’s furnishing department. At the time she was employed she was directed to be present at defendant’s store promptly on the next morning at 7:45 o ’clock, and she accordingly appeared at the front door of its store at the time directed, where she found from 600 to 650 other employees waiting to be admitted to begin work. It appears that of these about 300 were former employees, and the others, like plaintiff, had-not been previously in defendant’s employment. The former employees were first admitted,
The defendant introduced a great number of its employees as witnesses who testified that the time occupied in admitting its horde of clerks into its store was not more than from fifteen to twenty-five minutes, so that in respect to this material fact there is a wide divergence between the testimony of the defendant’s witnesses and those of the plaintiff. So the question now is, whether or not, upon the evidence which tends to show the facts just stated, the court erred in its action in refusing to take the case from the jury? Where there is a de
At the time plaintiff went to- defendant’s store she was in its employment and acting under its orders. It had directed her to be there promptly at a specified time. If on her arrival there it was inconvenient to it to admit and assign her to work, what duty, if any, did it owe her while she was waiting for directions to enter the store? Defendant knew that she had obeyed its order and was present at its store door waiting to- be admitted. It also knew the season of the year and the then prevailing atmospheric conditions. It also further knew, though she did not,' the probable time that would be required in admitting and “timing in” the 300 old clerk's, and how long she would probably have to wait before she could be admitted. And it also still further knew that she was waiting and expecting every minute to be admitted. It would have been an easy matter for defendant to have announced to plaintiff and the others that their presence would not be required there for the next hour and a half, so that she could have been afforded an opportunity to find a safer and more comfortable place to wait; or it might have directed her, with the others, to enter its large and spacious building and go to some designated place therein to await further orders.
If there is any one rule of law better settled in this State than another, it is that which enjoins upon the master the duty to furnish the servant in his employment a reasonably safe place to- perform the work assigned to him. And the same rule further provides that a default in this on the part of the master makes biin
It was necessarily implied from defendant’s order to plaintiff to appear promptly at the front door of its store at the time specified, that she should be there ready to enter when required to do' so, whenever that should be, so that the order in effect was for plaintiff to wait at the front door until it should suit the convenience of the defendant for her to be admitted; hence, plaintiff was so in waiting in obedience to "defendant’s order as master to a servant in its employment to do a particular thing at a certain place. It was probably as important in the transaction of the defendant’s business that the plaintiff should wait on the outside at that time, as it would be later on for her to do something else on the inside which the exigencies of its business demanded. And whether or not the place at which plaintiff was ordered to wait was a reasonably safe place to do so, in
It does not appear that the plaintiff knew the risk that was to be incurred by reason of the exposure incident to the waiting. Mere knowledge that the weather was inclement and that a risk was to be incurred by exposing herself to it as a matter of law was not sufficient to defeat plaintiff’s action if the danger from waiting was not so patent and obvious as to threaten immediate injury, or if it was reasonable to suppose she might, by the exercise of due care, safely wait at the place directed until bidden by defendant to enter its store. Smith v. Coal Co., 75 Mo. App. 177; Scott v. Springfield, 81 Mo. App. 312; Compton v. Railway, 82 Mo. App. 175; Stalzer v. Packing Co., 84 Mo. App. 565; Thompson v. Railway, 86 Mo. App. 148; Devore v. Railway, 86 Mo. App. 429; Hamman v. Coal Co., 156 Mo. 232; Doyle v. Trust Co., 140 Mo. 1 ; Donahoe v. Kansas City, 136 Mo. 670; Huhn v. Railway, 92 Mo. 440; Devlin v. Railway, 87 Mo. 545; Stoddard v. Railway, 65 Mo. 519. Even though the evidence may be said to be such as to justify reasonable minds in drawing different inferences therefrom as to whether plaintiff did not know the danger of waiting, yet if her knowledge in that respect was equal to that’ of defendant, this would not of itself defeat a recovery. Smith v. Coal Co., ante; Thompson v. Railway, ante. And the rule is, that where the facts with respect to the negligence are such as reasonable minds might differ, the case' is one for the jury. Thompson v. Railway, ante, and cases there cited.
It is suggested that plaintiff might have avoided exposure and consequent injury had she taken the precaution to enter any one of the neighboring sfiops or stores, and there waited until the class of clerks to which she belonged was called by defendant. But it will be remembered that there were several hundred of these
The defendant objects to the plaintiff’s first instruction on the ground that it is sot framed as to exclude the points raised by its evidence. This objection would be well taken (Clark v. Hammerle, 27 Mo. 1. c. 70; Fitzgerald v. Hayward, 50 Mo. 516; Torpey v. Railway, 64 Mo. App. 382; Griffith v. Conway, 45 Mo. App. 574; Schoen v. Kansas City, 65 Mo. App. 1. c. 134; Price v. Barnard, 70 Mo. App. 1. c. 180), were it not for the fact that the court gave others so modifying it as to fairly bring to the attention of the jury the affirmative' defenses pleaded by the defendant; so that the instructions considered as one charge fully presented both sides of the case to the jury. Lewis v. Humphries, 64 Mo. App. 1. c. 473; Voegeli v. Pickle Marble & Granite Co., 49 Mo. App. 643; Schroeder v. Michel, 98 Mo. 43.
The only criticism to which the action of the court could possibly be subject in respect to the giving and refusing instructions is that those given for defendant are far more favorable to it than they ought to have been.
No reason appearing why the judgment should be disturbed, it should accordingly be affirmed.
Majority Opinion.
ELLISON, J. — In addition to what Judge Smith has stated that the evidence for plaintiff tended to' show, it should be said that the testimony of plaintiff herself' showed that she was a woman of mature years — a married woman — and that the morning she charges that she was negligently exposed to. the weather by defendant was the time for the beginning of her menstrual period; and that it came upon her shortly after getting into the store. The weather was not at the freezing point, though it had rained the night preceding and the atmosphere was very damp. The wind was not blowing a “gale,” as expressed by plaintiff’s counsel, but only three miles an hour which is, perhaps, about the distance’ covered by a person in an ordinary walk, in the same length of- time. Plaintiff says she waited in front of' defendant’s store, as near as she could state, for about an hour and a'half. That there were business houses, immediately on the opposite side of the street into which she might have gone, and where she could- have waited until defendant opened the doors of its store; and that she could have seen through the glass in the doors of these stores when the doors of defendant’s store opened for the admission of the several hundred waiting clerks..
I think plaintiff must fail in her case from her own showing. We stated in Hyatt v. Railroad, 19 Mo. App. 1. c. 293, that where one was hired to work in the cold, though with a promise to provide fire, he could not “deliberately permit himself to freeze though surrounded with material to prevent it. ’ ’ Plaintiff was a married woman of mature years and we must assume she was, at least, of ordinary intelligence, and yet she remained within a few feet of comfortable shelter where she would have easily prqtected herself from whatever inconvenience and discomfort there was in remaining^ in the street. Her first reason for not seeking this shelter is no excuse at all. She says she was afraid she would lose her place with her employers if she was absent when the doors opened. But there were several hundred of them and plaintiff, on seeing from across the street that her fellow-employees were entering, could, of course, have got over and entered before any great' number had preceded her; indeed, without it being known to defendant, or perhaps any one else, that she had withdrawn from the crowd. It would be an absurdity to suppose that it would have made any difference to defendant whether she was among the first or. the last of the large number who entered when the doors opened.
Her second reason, if it excuses her .for voluntarily staying in the street, ought certainly to excuse defendant for letting her stay. If the state of the weather was such as not to make it occur to her that she would get cold, or that she would become sick from getting cold, why ought it to have occurred to defendant? Of the
In Yazoo Transfer Co. v. Smith, 78 Miss. 140, several servants were directed to load eighteen bales of cotton onto a boat. It was a very cold day and the fingers of one of them were frozen in consequence of the exposure in doing the work and had to be amputated. He brought his action for damages. The court said: “The able and ingenious arguments of counsel fail to parallel this case with cases involving superior knowledge of the person in command, and, as two of them concede, the statute of 1898, p.. 85, in reference to unsafe machinery, ways or appliances, or improper loading of cars, has no application. The laborer must be presumed to have knowledge equal, if not superior, to his employer of the effect of cold upon his feelings and person. His own temperament is better known to him than any one else, and his own sensations sound the alarm to himself. Men are presumed to have ordinary common sense, until the contrary is shown, and the law does not speculate on degrees of knowledge about weather. ’ ’
To permit a recovery in this case would make the employment of servants much too hazardous for the practical operation of private business.
The judgment should be reversed.
