156 Mo. App. 569 | Mo. Ct. App. | 1911
This suit is prosecuted by plaintiff to recover damages for the death of her husband which, she alleges, was caused by the negligence of defendant. In addition to a general denial the answer pleads assumed risk and contributory negligence as affirmative defenses. The appeal was taken by defendant from a judgment of $7500 recovered by plaintiff in the circuit court.
The death of Otto Schiller, the husband of plaintiff, occurred December 9, 1909, at the brewery of defendant in Kansas City where he was employed as a bottler and truckman and had been so employed three years or more. There was a loading dock at the brewery, a railroad track parallel to the dock and cases of empty beer bottles were being unloaded from a freight car standing on the track. The height of the floor of the car was four feet, that of the dock two and one-half feet and the distance between the car and the dock was eight or nine feet. A skid or gang plank provided by defendant was being used to bridge this space, and the method of unloading consisted of wheeling a four-wheel truck into the car, loading it with cases, and then wheeling it back down the gang plank to the dock. The platform of the truck was about one foot high and the wheels were set under the platform, the two rear wheels being somewhat larger than those in front. The gang plank consisted of four or five two-inch oak boards held together by 2x6 cross pieces, two in number, nailed to the under side of the boards near each end. The skid thus formed was ten feet long and between four and five feet wide. The end intended to go into cars was shouldered down to a width of about four feet to permit of its. entrance into the narrow doors of refrigerator cars. The skid had
The duties of the truckmen did not include that of constructing- or repairing any of the tools or appliances used by them. Evidence was introduced by plaintiff, over the objection of defendant, tending to show that it is customary in Kansas Gity to provide skids used in loading and unloading cars with cleats, hooks or some other device to hold them in place. The method and means of doing the work employed in the instances under consideration were those used by defendant during the whole period of Schiller’s employment.
The allegations of negligence in the petition are as follows:
“That on said date defendant carelessly and negligently furnished for the use of said Otto Schiller and his fellow-workmen, who were assisting him in his work, a skid or runway which was used to bridge the space between said loading dock and said freight car in which .they were working at said time, which car had been set and was standing on said railroad or switch track near to or adjoining said loading dock. That said skid was about ten feet long and consisted of planks or boards, about two inches thick, and said skid was of about the width of said car door, or four or five feet wide. That at said time said skid or runway was at said time in a defective an unsafe condition, in that it was torn af both ends and broken and had worn out grooves or places in said ends, and the wood thereof was rotten and decayed, and there were no cleats at or near the ends thereof to keep it from slipping when a person walked thereon, or a truck was run. thereon, and had no appliance at the end that was in said car door or doorway to hold it and keep it attached to said car door or doorway, and said loading dock was at said time also in a defective and unsafe condition in that no cleats were nailed on said platform or other apparatus attached to said platform of said loading dock to keep or prevent said skid or runboard from
Defendant argues that its demurrer to the evidence should have been sustained on three grounds, viz., that no negligence of the master is shown, that the risk which caused the injury was one of the natural risks of the employment and that the proximate cause of the injury was the negligent manner in which the servants, including Schiller, used reasonably safe appliances. Before discussing the questions presented by the demurrer we shall dispose of the point urged against the admission of evidence tending to prove the general custom in Kansas City relative to providing skids,' of the kind in controversy, with appliances for holding them in position while in use. The rules which allow a master to conduct his business in his own way, as long as his way is reasonably careful, and which absolve him from any duty of providing his servant with the latest and most approved appliances have, as corollary, the further rule which, in the judicial investigation of the issue of whether-or not
The rule thus is stated in I Labatt on Master and Servant, sec. 35: “From the above-stated conception of the extent of the master’s obligations is drawn the very important practical deduction, constantly reiterated and applied, that he cannot be charged with a breach of the duties owed to his servants, simply on the ground that a safer method or a safer instrumentality than that from which the injury resulted was available and might have been adopted by him. In other words, the question whether the particular machinery provided by a master is proper and suitable is to be determined by its actual condition, and not by comparing it with other machinery. Or, as the doctrine may also be expressed in more general terms, evidence which merely tends to show that the particular accident which caused the injury might not have happened if a particular precaution had been taken goes for nothing, in considering the question of legal liability on a charge of negligence.”
As further observed by the same author, the test is not whether the master omitted to do something he should have done but whether in selecting tools and machinery and in keeping them in repair, he was reasonably careful. And though it appears that general usage and custom, in effect, condemns a certain type of tool or appliance as obsolete' and not reasonably safe, that fact alone will not, in law, suffice to denounce as negligent the master who uses such type. The final test of negligence is not usage or custom but the inflexible rule which fixes reasonable care as the standard by which the conduct of the master to the servant is measured. Men must be allowed to depart from custom else there would be no progress in the arts and sciences or in the broad
“Evidence of a custom in doing a certain thing has probative force bearing upon negligence since custom arises from its adoption by many prudent men and the law recognizes the value of arriving at the nature or tendency of the given act by considering its effect upon the conduct of others as shown by a general custom.” [Gordon v. Railway, supra.]
Under this rule the evidence in question was admissible as it had a tendency to show that in using an appliance- less safe than that approved by general usage defendant was not reasonably careful.
Passing to the demurrer to the evidence what we have just said answers in part the contention that the evidence does not-accuse defendant of negligence. Considering the further facts that the truck men had no right to nail cleats or secure the stability of the gang plank, but were required to put it in place and proceed with their work of unloading, there is ground for a reasonable inference that the skid, as first provided, was not a reasonably safe instrumentality for such use and that the conditions of ill repair into which it was allowed to fall and remain rendered it still less safe. The icy condition of the dock and car door sill no doubt enhanced the danger but that condition, instead of favoring the position of defendant in this case, is against that position, since it clearly emphasizes the dereliction of defendant in requiring its men to work with a defective appliance under conditions that made such work unnecessarily dangerous.
Defendant was bound to anticipate that snow and ice would come and to make reasonable provision for
The incline of the gang plank from the dock to the car made the slipping of the plank a probable result of the continued striking against its end of the wheels of heavily loaded trucks and, since the workmen had neither the means nor opportunity of fastening the gang plank we think the jury were entitled to the inference that defendant was negligent in requiring them to work with an appliance that was dangerous but would have been safe had defendant observed reasonable care in its construction and maintenance.
Finding that the charge of negligence on the part of defendant is sustained by evidence which tends also to show that such negligence was a proximate cause of the injury we shall dispose of the issue of assumption of risk in "very few words. The rule is firmly established in this state that the servant never assumes a risk of injury created by the negligence of the master. [Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703; George v. Railroad, 225 Mo. 364; Schultz v. Railway, 145 Mo. App. 262.] And the fact that the servant is familiar not only with the defect caused or suffered to exist by such negligence does not alter or affect that application of the rule, and where it appears that negligence of the master was a proximate cause of the injury, the only defense available is contributory negligence. If the danger created by the defect in the appliance is so glaring and imminent as to threaten immediate injury the servant
The application of these rules to the facts in hand convinces us that the contributory negligence of plaintiff’s husband is established indisputably by her own evidence and that the learned trial judge erred in not sustaining the demurrer to the evidence. Schiller knew all about the defects in the gangplank and must have known that one of the rear wheels of the truck was off of the sheet iron plate and against the end of the gang plank. The diameter of the wheel was about one foot, the height of the obstruction was some three inches and the truck necessarily was somewhat canted. Under such circumstances and with knowledge that the dock and door sill were icy the action of Schiller and his fellow workmen in attempting to make the wheel ride over the obstruction by pulling and pushing it against the end of the gangplank was as obviously dangerous as it was unnecessary. Dangerous, because it was almost certain to push the plank off the door sill, since the plank was unsecured and rested on smooth supports, and, unnecessary, be
The judgment is reversed.