125 Mo. App. 150 | Mo. Ct. App. | 1907
This is a suit for injuries plaintiff received, alleged to have been the result of the defendant’s negligence. The petition alleges that on the twenty-fourth day of November, 1903, .plaintiff was the servant and employee of defendant and as such was engaged in digging a trench and laying a water pipe at Turkey Creek pumping station; that the work was being done under the direction and control of William
The evidence showed that plaintiff was a man fifty-five years of age and in good health at the time of his injury, at which time and prior thereto he was in the employ of defendant as a common laborer, principally engaged in excavating trenches and laying water mains; that he was injured while putting in an exhaust pipe from the boiler room at said station by the caving in of one of the banks of the trench which was from five to nine feet deep; that the trench was excavated through material composed of cinders, soil, sand, and some bricks; that at the time in question other employees of defendant were engaged in rolling in a large water pipe and shoveling back the excavated material; and that plaintiff while in the trench and in a stooping position, guiding a piece of water pipe, which was being carried on ropes by four or five men on top of the bank, was injured by a portion of the wall of the trench falling upon his back and legs. Attention will be called to other evidence hereafter.
The plaintiff recovered judgment in the sum of five thousand dollars, but entered a remittitur of five hundred dollars. Defendant appealed. The defendant alleges that many errors occurred during the trial, which we will notice in the order they are assigned in its brief.
First. The giving of instruction number five for
Plaintiff’s instruction numbered one is criticised for the alleged reason that; it is a commentary on the evidence, because it directs the attention of the jury to the negligence of a party not joined in the suit, that it is an incorrect and defective statement of the facts necessary to constitute negligence and because it assumes the truth of controverted facts and is broader than the petition. The instruction reads as follows: “You are instructed that if you believe from the evidence that the foreman in charge of the work knew, or by the exercise of ordinary care could have known, that there was danger of the wall or sides of the trench, in which the plaintiff was working, caving in and that he failed to provide against such caving in with the care and caution that a reasonably prudent and cautious person would have exercised under the same or similar circumstances, consistent with the continuation of the work that was being done, then he was guilty of negligence as that term
There is still another objection to the instruction which perhaps we ought to notice, viz.: that defendant was not allowed sufficient time after a discovery of the unsafe condition of the embankment to have rendered it safe. This view of the matter leaves out of consideration the láw that governs the relation of master and servant, viz.: that it is the duty of the master to furnish his servant with a reasonably safe place in which to do his work. This principle is so well understood that we will not stop to cite the authorities in its support.
It is next contended that plaintiff assumed the risk. It may be assumed as beyond dispute that the servant as a rule assumes the risk incident to his employment. [Minnier v. Railroad, 167 Mo. l. c. 113.] But it is always an important matter and sometimes á matter requiring careful consideration to determine what are the risks incident to a given employment, that the servant assumes. The servant never assumes the risk .of his master’s negligence. Therefore, if the master . conducts his business without the exercise of ordinary care and caution, the servant does not assume the risks
It will be assumed that the plaintiff was a man of ordinary intelligence and knew the danger,* but that fact would not preclude him from recovering if the danger was not imminent and of such a character that a person of ordinary prudence in the exercise of ordinary care would not have undertaken the work; or the converse, that he might have reasonably supposed that he could do the work by the use of care and caution. [Hurst v. Railroad, 163 Mo. 309.] And that is a question for the jury. [Thompson v. Railroad, 86 Mo. App. l. c. 150; Devore v. Railroad, 86 Mo. App. 429; Scott v. Springfield, 81 Mo. App. 312; Bradley v. Railroad, supra.] There was evidence tending to show that it was not only necessary to prop the walls of the trench to keep them from caving in, but as a matter of common knowledge that it was necessary to do so.
Another question raised by defendant is that plain
It is contended that the court erred in admitting certain testimony of Dr. Waite and of Dr. Jones, introduced as medical experts. As to the former, it is only necessary to remark that his evidence was strictly within the rule governing the admission of such evidence. Dr. Jones was asked: “Now, I will get you to state, Dr. Jones, if a man working in water, and then com
Witnesses were allowed to testify that in their opinion the trench required bracing. The reason assigned against the admission of this evidence is that this was a matter of common knowledge and not a matter of expert testimony. But the witnesses familiar with matters of that kind differed in their opinions as to the necessity for such bracing. Perhaps, that was not a sufficient test. Ordinarily, we would conclude that a trench in earth of the nature of that shown, from five to nine feet in depth, would require bracing. In our opinion, the evidence was not admissible under the rule. The rule
Other points made are not important. The remaining question that the verdict is excessive need not be considered as there will have to be a new trial for the error noted.
Reversed and remanded.