185 Mo. App. 99 | Mo. Ct. App. | 1914
The plaintiff was the servant of the defendant and had been for eight or nine years prior to his- injury, working in the same place and at the same kind of employment. Plis finger was mashed while engaged in that employment. He brought this action for damages, charging the defendant with negligence in furnishing him an unsafe place in which to work. A judgment was recovered in his favor and the defendant appeals to this court charging, among other things, that the evidence shows conclusively that the plaintiff was guilty of negligence which contributed to his injury and that the court erred in submitting the issues to the jury.
The case made, in the light of every reasonable inference drawn in plaintiff’s favor (which is the case with which this court piust deal), is as follows: For nine years prior to his injury the plaintiff worked in the cellar of defendant’s packing plant, curing meat. This cellar was divided into rooms, referred to in the evidence as the old cellar, the east room, the wash •room, and the curing room. The plaintiff was injured while trucking meat from the curing room through the wash room into the old cellar. The meat was carried out of the cellar by-means of an elevator located in the southeast corner of the old cellar room, first having been brought on a truck from the curing room through the wash room and into the old cellar room. It was in the line of plaintiff’s duty to operate the truck between these places. The floor of the entire cellar was concrete, and was in bad condition in that, as charged in the petition, the concrete or cement was full of holes, ruts or depressions, and was unsafe, dangerous • and unfit for the use to' which it was put by the defendant. There was a traveled route or runway northward across the old cellar from the elevator shaft to the door of the wash room, which was full of holes. The defendant had caused boards to be fitted into these holes so that a truck could be run over them. The hole that was the cause of the accident was about two and one-half inches deep and had a board fitted into it two inches thick by eight inches wide. The board was fitted in the hole loosely and was not imbedded or fixed in the cement. The condition of this cellar floor and-the location of the holes was known to both plaintiff and defendant long prior to the in
On June 22, 1912, plaintiff was ordered ■ by the defendant’s foreman to send up on the elevator fifteen hundred pounds of meat. ' He loaded the meat on this truck in the curing room. The bin was full and the meat extended over at the front and back ends, which was the usual way of loading. Plaintiff started with the truck toward the elevator shaft. In going-through the doorway from the. wash room to the old cellar room one front wheel of the truck struck the hole in the cement floor and dropped.into it and the truck was fastened in the doorway. Plaintiff at this
■ There was evidence pro and con as to the proper manner in which one pushing the bin from the rear should take hold of it with his hands. Plaintiff’s evidence was that the proper way, in order to guide it,
The foregoing statement is practically all taken from the statement of the case appearing in respondent’s brief touching the scene, equipment, incidents and account of the manner in which the injury was • caused.
There is nothing in this record showing anything to prevent the plaintiff from putting his hands against the back side of the bin in order to push it through the narrow doorway. It is shown that from the way in which he had loaded the bin he could not grasp the top of the bin in the rear as the meat extended over the top.
With the facts in mind, we come to apply the law and to determine whether the plaintiff in placing his hands on the side of the bin where some of his fingers were between the wooden bin and the cement door jambs, under the circumstances detailed, acted as an ordinarily prudent man would have acted, and more, whether reasonable men could differ, under the statement of the facts, in the conclusion to be drawn therefrom.
In considering this case it will be well to bear in mind some of the fundamental principles which require no citation of authority.
“Negligence” has been defined as being the failure to exercise that degree of care which ordinarily prudent persons are accustomed to exercise under like circumstances. Contributory negligence necessarily
While it cannot be laid down as a set rule that ordinary prudence requires every act to be done in the safest way, yet in determining whether the way it was done meets the requirement as to the- exercise of ordinary care, either as a question of law or one of fact, there must be taken into consideration the circumstances surrounding the occurrence of an injury sustained in doing the act; and the existence of a safer method which was at hand and within the voluntary choice of the injured person always enters into the question as a material element; it is one of the surrounding circumstances.
The evidence, summarized, is that the plaintiff knew that a rut existed in the floor, and that the board that had been placed over it had come out at previous times and let the truck wheels down so as to get it fastened in the walls forming the door jambs. He also knew that very thing had just occurred because he had called for help to get it out. He must, therefore, be held to a knowledge that it was likely to happen again, and as a reasonable man he must have known that if it did occur the bin would be certain or most likely to fall against the cement wall, and that if his'finger was between the two (the cement wall on the one side and the bin containing fifteen hundred
This case involves no complicated machinery, nor conditions that are difficult to understand. The truck, only three and one-half feet long, had to be merely pushed through this space over a distance of three feet. The regular route, as shown by the plat, to, through, and on from, the door, for a considerable distance, was straight. It could require nothing but a straight push to make the truck go where it was wanted, and that is especially true while-going through the three foot space. The whole back end of the bin was there to place the hands against and push it through. The plaintiff testified he could g’uide the truck better by placing his hands as they were at the time of the injury; but the physical facts show that at this particular place there was no necessity to guide; the truck could only go -straight through the opening and was intended to go straight through. He therefore had open to him a safe way and a way that was dangerous (but not so dangerous, perhaps, that ordinary prudence would have dictated an abandonment of the undertaking because that choice was not put up to him). A choice between a safe and an oN viously unsafe way was put up to him, and he voluntarily chose the less safe way. By the mere shifting of his hands slightly toward the center of the back side of the bin — a distance of less than half the width of his hand — he could have pushed the truck through, and when it did fbll, as he had cause to believe it would, he would have remained uninjured. It is apparent from the instructions' that the circuit court tried the cáse on the theory that plaintiff had a right to do it either way, provided the way he did it was not so glaringly dangerous that an ordinarily prudent, man would not have attempted to do it in that way. This is not the rule where the servant is confronted with a, safe and an unsafe way to perform his work.
The rule we adhere to is declared in the textbooks and upheld by the decisions of our own and many other States. In 29 Cyc. 520, the rule is thus stated, citing Meyers v. Railroad, 103 Mo. App. 268, 77 S. W. 149: “If two ways are open to a person to use, one safe and the other dangerous, the choice of the dangerous way with knowledge of the danger constitutes contributory negligence.” To the same effect, see 2 Bailey on Personal Injuries, sec. 469, p. 1376, and 3 Labatt’s Master & Servant, sec. 1249, p. 3432. This rule is approved in Moore v. Railway Co., 146 Mo. l. c. 182, 48 S. W. 487, and in Smith v. Forrester-Nace Box Co., 193 Mo. l. c. 737, 92 S. W. 394, in this quotation: “ ‘Where a person having a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.’ ” It has been upheld in the following cases where the facts required the same application of law: Pohlmann v. Car & Foundry Co., 123 Mo. App. 219, 100 S. W. 544; Montgomery v. Railway Co., 109 Mo. App. 88, 83 S. W. 66; Hirsch v. Bread Co., 150 Mo. App. 162, 129 S. W. 1060; Schiller v. Breweries Co., 156 Mo. App. l. c. 579-580, 137 S. W. 607; George v. Manufacturing Co., 159 Mo. 333, 59 S. W. 1097; Wilkinson v. Andriano Bottling Co., 154 Mo. App. l. c. 570, 136 S. W. 720; Dawson v. Railway Co., 114 Fed. l. c. 872; Gilbert v. Railway Co., 128 Fed. 529; Morris v. Duluth,
We are cited by respondent to the case of Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467, 61 S. W. 806, but an examination of the opinion discloses that it does not bear on the question before us. There the servant had not the choice of a safe and unsafe way of doing his work but his choice in that case was to do it in the one way that was before him, which was unsafe, or refuse to do it at all.
Nor does plaintiff’s evidence that.he had taken this truck through this particular doorway in the same manner on previous occasions without injury help him. It is not proof of the exercise of ordinary care to show that one doing a negligent act a number of
Viewing plaintiff’s act from a common sense standpoint he knew .that the bin and the cement door jambs were likely to come together because they had done so before. If they did, he must have known as an ordinarily prudent man that if his fingers were in the position they were actually in they would almost certainly be injured. He could have placed his hands at another place and pushed the truck through the doorway and not been hurt when the truck fell into the hole as he had ample cause to expect it would. Whether this injury had occurred in his own cellar or in that of a master, under the circumstances there could be but one reasonable conclusion drawn, and that is that his act was thoughtless,- careless and negligent.
The judgment is reversed.