136 Mo. App. 260 | Mo. Ct. App. | 1909
Action by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the master. At the conclusion of the evidence offered by plaintiff, the court instructed the jury to return a verdict for defendants and plaintiff took a nonsuit, with leave to move to set the same aside. Afterward, the court sustained the motion filed by plaintiff to set aside the non-suit and to grant him a new trial. Defendants appealed.
The sole question presented for our determination is whether or not the evidence of plaintiff entitled him to go to the jury. Defendants were contractors engaged in the erection of the Connor Hotel at Joplin.
“I saw Mr. Welch standing on a wall setting a stone; Dr. Long and I were looking at him set the
Plaintiff had been working at the trade of stonemason for twenty years and was a thoroughly experienced workman. He had been using the sill in lieu of a scaffold for more than a month. Two or three days before the injury, he asked the foreman to build a scaffold. The foreman complied Avith the request and built a scaffold for use in laying the fifth course. Plaintiff was at work Avhile it was being built and made no request or suggestion that it be built for use in setting the fourth course. He testified: “I just told him we would have to have a scaffold there; we had went just about as high as we could possibly go; and he walked on through the building and they Avent to building it right away. . . . Q. You say they- were putting it for the fifth? A. There wasn’t any use putting it for the fourth. Q. You still had some of the fourth? A. Not-very much. Q. You didn’t say anything about wanting it for the fourth course? A. I didn’t have very much.”
After plaintiff had rested and the court, heard counsel argue the demurrer to the evidence, plaintiff was recalled to the stand and testified that his request for a scaffold was made before he commenced putting on the fourth course, but his testimony considered as a whole shows conclusively that he did not consider the sill a dangerous place on Avhich to stand and that he did not ask for a scaffold to be built for his use while his work was in easy reach from the sill. It is
These facts do not accuse defendants of any negligence, and to hold them liable for plaintiff’s injury would be to say that they were insurers of their servant’s safety. The injury of plaintiff was clearly the result of a natural risk of the employment — a risk assumed by him — and not of defendant’s negligence. The proximate cause of the injury was the falling of the slab and this was caused, not by the insecure footing of plaintiff, but by the dislodgement of the wedge — a result obviously caused by the manner in which plaintiff handled the stone and his tools in his efforts to level the stone. If it may be said that plaintiff might have prevented the stone from falling had he been on a scaffold, his position here is not improved. It is the duty of the master to exercise reasonable care to provide his servant a reasonably safe place in which to work and not to increase the natural hazards of the employment by a negligent breach of such duty. But it is apparent that neither master nor man thought, or had reason to think, that a sill fifteen inches wide was a dangerous place to work in setting the lower courses. No one knew better than plaintiff at what stage of the work a scaffold would become necessary and defendant promptly complied with his request by building a scaffold which was satisfactory to him. If he needed the scaffold for the fourth course, he should have said so. From Avhatever standpoint the facts are viewred, the conclusion is irresistible that the unfortunate accident, if the fault of anyone, was the fault of plaintiff and not due to any negligence of defendants. [Fugler v. Bothe, 117 Mo. 475; Steinhauser v. Spraul, ■ 127 Mo. 541; Blundell v. Miller, 189 Mo. 552; Mathis
It follows that the judgment must be reversed.