62 Mo. App. 184 | Mo. Ct. App. | 1895
This is an action for damages on account of personal injuries received by the plaintiff in falling from a defective ladder, in use at the defendant’s coal chutes in the yards at St. Joseph, where the plaintiff was employed. The coal bins were located on a platform, raised about twenty feet above the surface of the ground, and the only means for reaching these bins and chutes, where plaintiff' and others worked, was a ladder’constructed at the end of the platform. The ladder was twenty feet long and composed of two perpendicular pieces of timber, having the rounds mortised in or nailed to the side pieces. Owing to the long use of the ladder, these rounds or cross pieces (particularly about the middle of the ladder) had become worn, and, therefore, weak.
While the plaintiff was descending the ladder in the course of his employment, on July 28, ’1890, one of these rounds broke, and he fell to the ground, striking the sharp corner of a scantling, producing a fracture of the shoulder, rendering him unfit for labor for a long time; and the evidence tends to show that said injuries are permanent.
The plaintiff and two other witnesses testified substantially that about a week or ten days before he was injured, plaintiff called the attention of defendant’s
The defendant’s master mechanic admitted that plaintiff* complained of the defective condition of the ladder, but further stated that he instructed the plaintiff to go to the roundhouse and get tools and materials, and repair it. Plaintiff and his witnesses denied that any such instructions were given.
The petition charged defendant with negligence in maintaining an insecure ladder; that it failed to repair same when advised of its condition, but promised plaintiff from day to day to do so, and thereby induced him to continue the use thereof, etc. The answer admitted the plaintiff’s employment, and that he fell from the ladder and was injured; but charged that such injuries were the result of plaintiff’s own negligence, and that he (the plaintiff) all the time had knowledge of the defective condition of the ladder. The issues were tried by jury, resulting in a verdict and judgment for plaintiff in the sum of $1,600, and defendant appealed.
I. The first and main point relied upon by defendant in this appeal is that the evidence showed no right of recovery, and that the trial court ought to
The principle here invoked by defendant’s counsel (that is, that the servant can not recover when he has prior knowledge of the defect) is subject to several qualifications or exceptions. For example, it has been repeatedly held in this state (Huhn v. Railroad, 92 Mo. 440, being a leading case) that mere knowledge of a defect in the appliance with which the servant is working, will not, as matter of law, bar a recovery, unless such instrumentality is so glaringly imperfect as to threaten immediate injury — so defective-that a man of ordinary prudence would see that it could not be safely used with great care and skill. So, too, even when the condition of the instrument, machinery or place is such as to threaten injury and the servant observes it, yet, if the master assures the servant that there is no immediate danger and orders him to proceed, it will then be left to the jury, or trier of the facts, to determine if the servant was negligent in heeding such assurance and obeying such orders. Stephens v. Railroad, 96 Mo. 207; Halliburton v. Railroad, 58 Mo. App. 27, and cases cited.
It is, then, incorrect to say that the servant’s prior knowledge of imperfections or danger is always conclusive against his right of action. It is, in all cases', evidence tending to establish culpable negligence
The case in hand, viewed in the light of plaintiff’s evidence, comes clearly within the foregoing principles. While it is true that the plaintiff observed the worn and weakened condition of the ladder and called the master’s attention thereto, it can hardly be said that the danger of its use was so glaring and threatening to an ordinary workman as to call upon him to abandon his employment. The laborer might reasonably think that with proper care he could continue the use of the ladder for a while longer without any immediate peril. The jury might well conclude that an ordinarily prudent man would, under the- circumstances, continue to work. Moreover, the conduct of the plaintiff is further removed from the charge of absolute contributing negligence when it is remembered that his superior, the master mechanic in charge of the yards, assured him that there was no immediate danger, ordered him to go ahead, and promised repairs in a short time. And the evidence tends to prove that plaintiff continued the performance of his duties, relying, as he had the right to do, on the superior judgment of the master mechanic and the promise to repair. The duty of inspection and repair- rested on the latter; obedience to orders belonged to the former. Hence it is said that the master and servant are not on equal terms in this regard. “An assurance from one representing the master that the machinery or apparatus being used is all right,
Defendant’s counsel have, • however, urged with much force that the above rule only holds where the servant is employed in the use of dangerous and complicated machinery, and that it is not applicable in cases such as this, where the implement or appliance is simple, easily understood, and the defects of which are as open to the observation of the servant as to the master. Cases in other jurisdictions are cited which seem, in some degree, to sustain this contention. Such a distinction, however, finds no support in the appellate courts of Missouri. Nor do we know of any principle of law that will hold the master to an obligation to provide reasonably safe machinery and appliances, where they are dangerous and complex in their nature, and at the same time exempt him from such duty when the implements are simple in construction. The rule, generally expressed, is always the same. The master is required under the law to exercise ordinary care, not only to provide a reasonably safe place for the servant to work in, but to put into his hands reasonably safe machinery and instrumentalities and to use due care in keeping such in good repair. The care required of the master in furnishing the appliances to the servant, and in keeping the same in repair, is ordinary care — such care as would be expected of a reasonably prudent master under the same circumstances. The master is required to act prudently and with reasonable diligence to protect the servant. But,
We do not think, then, the plaintiff in the case at bar can be denied a recovery merely because the ladder which broke with him and caused the injury was a simple contrivance, This was a circumstance
A demurrer to the evidence was properly overruled.
II. Defendant’s counsel have made some criticisms on the court’s instructions. But after a careful consideration of all these, separately and together, we fail to discover any substantial error. The duty of the railroad company to exercise ordinary care in providing a reasonably safe ladder for the use of the plaintiff and others engaged at the coal chute, was fairly stated in the court’s charge to the jury. It is true that in one of- the instructions it was declared the duty of the defendant “to furnish plaintiff a ladder that was reasonably safe and secure,” yet further on, by defendant’s instruction number 9, the court cautioned the jury, “that the defendant, when the plaintiff entered its employ, did not guarantee his safety, but only undertook to exercise ordinary care therefor.” The objections taken to plaintiff’s instruction number 1 are entirely without merit. It is after the pattern
On the other hand, the court’s instructions exacted the exercise of ordinary care on the part of the plaintiff ; and in explicit terms advised the jury that plaintiff could not recover, “if the danger from using said ladder was so glaring and apparent that a person of ordinary prudence and caution, in the position of plaintiff, would not have undertaken the risk;” or if “the defendant’s foreman, or master mechanic, ordered, instructed or directed plaintiff to repair said ladder and that plaintiff failed to do so and was injured in consequence of said failure.”
In short, every phase of the case, whether for plaintiff or defendant, was fairly and intelligently presented to the jury by clear and unambiguous instructions and we therefore discover no reason for disturbing the judgment because of any objections to the court’s charge to the jury.
III. Further exceptions are taken to the action of the trial court in permitting the court stenographer to read to the jury from her stenographic notes, taken at a former trial, the alleged testimony of witnesses Ronenspeiss, Hiner and Atherton. These parties had testified for the defense at both trials, and the plaintiff’s effort was, probably, to impeach them by showing that they had not told the same story on both occasions.
We find it unnecessary to determine the competency of this evidence, since a careful scrutiny of the matters thus permitted to go to the jury convinces us that it was entirely harmless. The testimony of these witnesses at the former trial, as given out by the stenographer, and read from her notes taken at the time, was substantially the same as given at the last trial. Ronenspeiss testified on both occasions that in 1890, a short time before plaintiff; fell from the ladder^ he
So then the admission of the stenographer’s notes, taken and preserved at the first trial and as read to the jury, did not in the least reflect on the credibility of these witnesses. It tended rather to strengthen and support the testimony at the last trial. And surely this could not prejudice the defendant.
Discovering no errors prejudicial to the defendant, the judgment is affirmed.