52 Mo. App. 43 | Mo. Ct. App. | 1892
The plaintiff’s husband, while employed by the defendant and while engaged in the performance of a duty assigned to him, received personal injuries which caused his death. The plaintiff, as his widow, sues for damages under section 4426 of the Revised Statutes, 1889, alleging that the injuries received by her husband were caused by the wrongful act or neglect of the defendant. The defendant is and was at the
The plaintiff in her petition charged the defendant with the following acts of negligence: First. Allowing the floor and the platform to become (wet, slippery
In addition to the general denial, the answer contained the following: “And, for his further answer, defendant states that the. death of the said John Reichla was occasioned by his own negligence, and not by any negligence on the part of the defendant.” As a further defense it was alleged that, on the twenty-fourth day of February, 1890, the plaintiff, as the next friend of the minor children of the deceased, instituted a suit in the circuit court of the city of St. Louis, and that the plaintiffs averred in their petition that the widow of the deceased had failed to sue for damages within -six months after the death of the deceased, and that by reason of such failure a right of action for damages for the death of the father had, under the provisions of the statute, been vested in them. Wherefore, it was alleged by the defendant that the plaintiff was now estoppedfromallegingthat she, as widow, had instituted such a suit within six months after the death of her husband, and that she afterwards took a nonsuit in said cause. This portion of the answer was, on motion of the plaintiff, stricken out. The cause was then tried, and the jury under the instructions of
That portion of the defendant's answer, which set forth the alleged estoppel, was properly stricken out. The averments in the petition filed by the minor children, although the plaintiff appeared as next friend, cannot operate as an estoppel against her in this suit, for the reason that the defendant did not act thereon to his prejudice. If he had compromised the suit with the children, or if the suit had been prosecuted to a final judgment against him, then the plaintiff would have been clearly estopped. Newcomb v. Jones, 37 Mo. App. 475; Wilburn v. Railroad, 48 Mo. App. 224. Therefore, the facts stated in that portion of the answer could under no view be material, because, if in point of fact the plaintiff did institute a suit within six months after the death of her husband, under the authority of McNamara v. Slavens, 76 Mo. 329, the right of the children to sue was forever gone. If she did not so sue, then she must fail in the present action, regardless of what was done or said by her in the suit of the children.
At the elose^of the plaintiff’s evidence, and also at the close of all the evidence, the defendant asked the court to declare that, under the law and the evidence, there could be no recovery. The instruction was refused, and this action of the court is assigned for error.
The plaintiff’s evidence tended to prove that the deceased was hired by the defendant to clean up in the tank room; that, on the third day after his employment, the man whose business it was to attend to the tanks being sick, the defendant ordered the deceased to take off the “manhole” of one of the tanks, which was outside of the line of dirty of the deceased; that, upon receiving the order, the deceased went into the tank-
The plaintiff’s evidence touching the alleged failures of duty by the defendant was sufficient to take the case to the jury under proper instructions, unless the whole evidence leaves the cause of the accident a matter of mere conjecture or surmise, and not of legal inference. If the proof is sufficient to make the inference
The defendant complains of the instructions. It will only be necessary to notice those given. The court charged the jury as follows: “In this action the plaintiff seeks to recover damages for the death of her husband, which she alleges was caused by the negligence of the defendant.
“The alleged acts of the defendant, which the plaintiff alleges were acts of negligence, are:
“First. Allowing the platform mentioned in evidence to be wet, slippery and greasy.
“Second. Allowing the box of hot water mentioned in the evidence to remain open and exposed without a suitable rail or guard.
“Third. Allowing the platform to remain without rail or guard.
“Fourth. Permitting the place, where the' tanks and hot water box were, to be insufficiently lighted to enable one to observe the condition of the premises and appliances, and to safely do the work, which the plaintiff alleges that her husband was ordered to do.
“Fifth. Furnishing unsuitable and defective wrenches to do the work mentioned, of which plaintiff alleges there were two, a monkey wrench which was out of repair, rusty, too small, and could not be turned or used on the tank, and another wrench that was defective, worn out, too large for the nut which it was used to turn, and unfit for that use.
“It is for you to decide from the evidence in this case .whether or not the defendant did, or permitted, the acts and conditions above specified,' or either of them, and, if so, whether or not such was negligence.
“The law does not require an employer of men to furnish them tools, and implements and conditions, that are absolutely safe, but it does require of him to exercise that degree of care that a man of ordinary common sense and prudence engaged in like business would exercise, to see that the tools and appliances and conditions furnished by him are reasonably safe and suited for the business; and, in the assignment of tasks and duties to his employes, he should exercise a like degree of care and prudence to see that inexperienced men are not assigned to duties for.which they are unfitted, and which involve unreasonable risks.
“If, in respect of the above-enumerated alleged acts of the defendant, he did exercise the degree of care above mentioned, he was not guilty of negligence; if he failed to exercise that degree of care, then he was guilty of negligence within the meaning of that term as used in these instructions.
“And, on the other hand, the employe who enters into a service, takes upon himself the risk of hazard, if any, that naturally belongs to that kind of service, and he is required, in the performance of his duties, to exercise that degree of care and prudence to avoid injury to himself, which a man t>f ordinary common sense and prudence engaged in that kind' of business would exercise; and a failure on his part to exercise that degree of care and prudence in that connection is what is meant by the term negligence, as used in these
“Unless you believe from the evidence that the defendant did or permitted the above-mentioned acts or conditions alleged as negligence, or either of them, you must find for the defendant.
“And if you believe from the evidence that he did, or permitted said enumerated acts or conditions, or either of them, it will then be your duty to decide under the evidence whether or not such act or condition was negligence on his part, within the meaning of that term as above defined; and, if you'find that the same was not negligence within that definition, then your verdict should be for the defendant.
“But, if you find from the evidence that the defendant was guilty of negligence in respect of said alleged acts or conditions, or either of them, then it will be your duty to decide under the evidence whether or not that negligence caused the death of the plaintiff’s husband, and, unless you find from the evidence that that negligence did cause said death, your verdict must be for the defendant; and, if you find from the evidence that the defendant was guilty of negligence in respect of said alleged acts or conditions, or either of them, and that that negligence contributed to cause said death, it will be your duty to decide under the evidence whether or not the plaintiff’s husband was himself guilty of negligence in the premises, which also contributed to cause his death, and, if you decide that question in the affirmative, your verdict must be for the defendant.
“But, if you believe from the evidence that the defendant was guilty of negligence, within the definition above given, in respect of said alleged acts or conditions, or either of them, and that that negligence caused the death of the plaintiff’s husband, and that he was, at
At the instance of the plaintiff the court also instructed the jury: “1. If the jury believe that any witness has wilfully testified falsely to any material fact in this case, then you may disregard the whole, or any part, of the testimony of said witness.”
“2. If the jury find for the plaintiff, you may, in your verdict, give her such damages, not exceeding $5,000, as you may deem fair and just, under the evidence in the case, with reference to the necessary injury resulting to the plaintiff from the death of her husband.”
On the part of the defendant the jury were further instructed: “The jurors are also instructed that, if they should believe and find from the evidence that the deceased received the injuries complained of by reason of defects in any one of the wrenches mentioned in evidence, while using the same for the purpose of opening the manhole of the rendering tank, also mentioned in evidence, still plaintiff is not entitled to recover, if they further believe and find that the defendant, immediately prior to the accident to the deceased, directed deceased not to attempt to open the said manhole in defendant’s absence.
“2. The jurors are also instructed that, if they should believe and find from the evidence that the defendant offered to pay something to the plaintiff in settlement of the previous case brought by her against him, and heretofore tried in circuit court room 2, that fact does not constitute evidence of an admission, upon defendant’s part, i of any liability for the damages
The court’s charge to the jury cannot be sustained. In order to a proper understanding of the subject, it will be necessary to refer to some elementary principles which govern master and servant in their relations as such. It is the law, recognized everywhere, that the master must furnish suitable and reasonably safe instrumentalities with which to accomplish the work assigned to the servant. This not only requires suitable tools and appliances, and competent fellow-servants, but also that the place where the work is to be carried on must be reasonably safe. This latter duty is not only enjoined by the law governing master and servant, but it is also imposed upon the master, as the owner of the premises, by the general law for the protection of all persons lawfully there. Dayharsh v. Railroad, 103 Mo. 570; Hannibal & St. J. Ry. Co. v. Fox, 31 Kan. 586; Siela v. Railroad, 82 Mo. 430; Covey v. Railroad, 86 Mo. 635; Hickman v. Railroad, 22 Mo. App. 345; Sullivan v. Mfg. Co., 113 Mass. 396; Coombs v. Cordage Co., 102 Mass. 572; Dowling v. Allen, 74 Mo. 13; Gibson v. Railroad, 46 Mo. 163. On the other hand, the servant by his contract of employment assumes all of the usual and ordinary hazards of the business. Renfro v. Railroad, 86 Mo. 302; Wood’s Law of Master & Servant, sec. 382. In an action by the servant against the master for personal injuries, received while about the latter’s business, it devolves upon the servant to prove that the master failed in some legal duty which he owed to him. If he complains of defects in the instrumentalities of the business, he must show, either that the defects complained of were not obvious, and were unknown to him, but that the master had knowledge thereof, or might have had by ordinary inspection (Keegan v. Kavanaugh, 62 Mo. 230); or, if
Now in the case at bar the defects complained of, with the exception, perhaps, of the alleged defective condition of the wrench, were obvious, and it is quite plain that the court in its charge failed to place the right of recovery under proper legal restrictions and qualifications. The conduct of the deceased in accepting and continuing in the service with knowledge of the alleged defects, strictly speaking, does not present a question of contributory negligence on his part, which, to be available to the defendant, must have been pleaded; but the effect of such conduct, without a further showing by the plaintiff, was to free the defendant from any negligence of which plaintiff had a right to complain. Flynn v. Bridge Co., 42 Mo. App. 529. Therefore, it was a part of the plaintiff’s case to show to the satisfaction of the jury either that the deceased, for want of time for consideration, did not fully appreciate the risk attending the execution of defendant’s order, or that the increased danger by reason of defective agencies did not threaten immediate injury.
In view of a new trial, there is another matter which we ought to notice. It is insisted by defendant that it was not negligence on his part to use the hot water box and platform without a guard. At the time of the accident we had no statute requiring any kind of dan
The position here taken is not in conflict with our decision in the case of Fugler v. Bothe, supra. In that case the liability of the defendant was not made to rest on the faulty construction of the appliance, but upon the fact that the appliance furnished for doing the work was unusual and extra hazardous.
In view of a retrial, we have deemed it proper to call attention to the fact that the case of Fugler v. Bothe, supra, has been certified to the-supreme court, and will in all probability be determined before a retrial of the present action can be had. Whatever may, be the decision of the supreme court in that case, it will be the duty of the circuit court to retry the present case in conformity thereto. Hamilton v. Ins. Co., 35 Mo. App. 263.
For the error in the instruction the judgment of the circuit court will be reversed, and the cause remanded.