122 Mo. App. 667 | Mo. Ct. App. | 1907
The plaintiff was injured while engaged in the service of the defendant and brought this action for damages, in which he prevailed in the trial court.
It appears that defendant had several men, including the plaintiff, engaged in enlarging a roundhouse by extending it so as to make it of greater depth,, that it might serve to .accommodate engines of greater length than had been theretofore housed therein. The roof of the house was composed of rafters, sheeting planks an inch thick, sheeting paper laid over the planks and a coating of tar and gravel over them. In constructing the improvement, or arranging for it, it became necessary to remove two or more of the sheeting planks, from under the sheeting paper and gravel. The roof was thus left to appear, when viewed from the outside, to be safe for any one to walk over it. But it .seems the removal of the planks could have been observed by one looking up from the inside. Plaintiff was not an expert carpenter. He had worked on bridges and might, perhaps, come under the designation of a “rough carpenter.” He had only been engaged at the roundhouse a few minutes before he received his injury. There was scaffolding
We agree with defendant’s counsel as to the risk carpenters and other workmen assume in building or reconstructing houses. The very nature of the work suggests its danger, as well as the necessity for those engaged therein to assume the risk incident thereto’. We recognize the force and reason in the suggestions made at the argument that employees cannot expect to be provided with a safe place when employed to work in an unsafe place, such as, for instance, the repair of structures which have grown unsafe. [Roberts v. Telephone Co., 166 Mo. 370; Henson v. Packing Co., 113 Mo. App. 618; Armour v. Hahn, 111 U. S. 318.]
“Plaintiff while in the employ of defendant, under direction of a foreman, put up a staging about tAventyeight feet from the ground, firmly nailing the two planks Avhich constituted the floor, so that he could go upon it in doing the work. During his absence, another workman, under directions of the foreman, removed one of the planks, placing another in its place, without nailing or fastening it. Plaintiff, not knowing that any change had been made, returned to his work on the staging, Avhich let him fall to the ground, whereby he was injured. Held, that, not the failure of plaintiff’s fellow-workman to nail the plank which replaced the nailed*672 one, but the aot of the foreman in misleading plaintiff into danger, was the cause of tbe injury, from which defendant was liable.”
In its opinion the court said: “The placing the plank on the brackets without nailing it, would not constitute actionable negligence. [Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433.] That is not what the jury founded their verdict upon. The fellow-servant may have done that. What injured .the plaintiff was the misleading of him into danger.”
We do not consider that there was any ground which would have justified the trial court in declaring plaintiff to have been guilty of contributory negligence as a matter of law. He did not know the boards had been removed. He had only been at work a few minutes and had not observed it. The only way he could have known it was to have looked up from the ground, or to have observed it as he ascended the ladder. It would be going beyond reason to say, that plaintiff’s mere failure to note the absence of the boards was negligence as a matter of law. On the other hand, it is quite reasonable to suppose, in the circumstances shown, that it would not occur to him that the roof had been disturbed in such' manner.
It is next insisted that error was committed in failing to instruct the jury as to an act or acts of negligence upon which plaintiff might recover. The only instruction asked by plaintiff, or given by the court for the plaintiff, was one on the measure of damages, in which there is no reference to negligence. It was insisted at the argument that no issues were formulated and submitted to the jury and that in consequence they were not informed on the questions which they ought to determine. It has been the understanding of the bar and has ever been the practice to regard instructions in a civil case a,s a right which a party may demand. It has been regarded more as a privilege of which he cannot be
required to instruct unless requested so to do.” [Nolan v. Johns, 126 Mo. 159, 166; Minter v. Bradstreet Co., 174 Mo. 444, 491.] “The court is not required in a civil case to instruct on all questions whether suggested or not.” [Browning v. Railway, 124 Mo. 55, 72; Chicago, etc., Co. v. Randolph, etc., Co., 103 Mo. 451, 468.] “The question of negligence was then left to the jury without any instruction on this point being requested by either party. It is now too late to say that the jury were not properly instructed in the law. It will not answer for a party to lie by and await the chances of a favorable verdict, and when the chance has proved against him, to turn around and complain of the failure of the court to give a correct exposition of the law to the jury. When such a course is taken, we must infer that the party preferred leaving the law and fact to the decision of the jury.” [Drury v. White, 10 Mo. 354.] “In the trial of causes neither party is bound to ask instructions.” [Clark v. Hammerle, 27 Mo. 55, 70.] “This is a civil case and it is firmly established that in civil cases a
But we are cited to a case in the Supreme Court (Allen v. Transit Co., 183 Mo. 411, 432), which it is said modifies the rule as heretofore announced. We think it does not do so in the least. In that case instructions were given for the plaintiff, at his request, which were held to be improper and which were' manifestly erroneous. It is, of course, too plain for dispute, that if a party concludes to exercise his right to instructions, he must see to it that they are proper as respects the law and that they are not so framed as to confuse or mis*lead the jury. So, we are cited to Kohr v. Railway, 117 Mo. App. 302, but there instructions were also asked by the plaintiff and given. In one of these the jury were required to assess damages as the result of defendant’s negligence “as defined by these instructions.” The other
In this case, as before intimated, the only instruction asked was solely on the measure of damages. On that issue it was correct. It was based on the hypothesis of the jury finding for plaintiff:. It read that, “If you find for the plaintiff, in estimating his damages, if any, you may take into consideration,” etc. It made no reference to any question of defendant’s negligence, nor to any other issue in the case save as to the element of damages in case the verdict was for the plaintiff.
Prom the foregoing, it follows that we must affirm the judgment.