Reber v. Tower

• Decision Date: 22 November 1881
• Citation: 11 Mo.App. 199
• Parties: HEINRICH REBER, Respondent, v. GEORGE T. TOWER, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 199

HEINRICH REBER, Respondent,

v.GEORGE T. TOWER, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 22, 1881.

1. The master is bound to exercise reasonable care that the structures, machinery, and appliances furnished by him for his servants' use, are safe.

2. Except as to matters coming within the range of his peculiar skill, the servant has the right to assume that the machinery furnished him is reasonably safe.

3. The master is chargeable with such knowledge as to the character and condition of his machinery as he might have acquired by the exercise of due care.

4. It is error to tell the jury that, as matter of law, if the plaintiff was required, in the discharge of his duty, to go upon the platform, it was his duty to keep it in safe condition.

5. The negligence of a vice-principal, in charge, is the negligence of the master.

6. Where the discretion of the trial court has not been abused, in permitting leading questions on direct examination, the appellate court will not interfere.

7. Where it appears that the admission of incompetent evidence could not have misled or prejudiced the jury, its admission is not cause for a reversal.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

E. T. ALLEN, for the appellant: The master may rely upon the judgment of the servant as to the safety of machinery where it is within the range of the servant's peculiar skill.-- Georgia R. Co. v. Kenney, 58 Ga. 485; Nolan v. Shickle, 69 Mo. 336; Hulett v. Railroad Co., 67 Mo. 239. The defendant had no notice of defects and was not negligently ignorant of them.--2 Thomp. on Neg. 1053, sect. 48. It appears that the plaintiff was grossly negligent.--2 Thomp. on Neg. 1016 (citing 5 Ohio St. 541, 564.) In this case, the risks incurred by plaintiff in the services rendered were not ““““equally open to the observation of himself and the master,” but plaintiff had far greater opportunities for knowing the condition of the ladders and the platform than had the defendant.-- Cummings v. Collins, 61 Mo. 520.

BROADHEAD, SLAYBACK & HAEUSSLER, for the respondent: It is the duty of the owners and managers of such premises to exercise reasonable care in order to protect employees against accident.-- Lydon v. Manion, 3 Mo. App. 601; Whalen v. Church, 62 Mo. 237; Conroy v. Iron Works, 62 Mo. 35. The employee has a right to rely upon the superior judgment and caution of his employer to protect him against the dangers that are extra hazardous.-- Keegan v. Kavanaugh, 62 Mo. 230; Horner v. Nicholson, 56 Mo. 220; Cook v. Railroad Co., 63 Mo. 397. It was for the jury to decide upon the questions of fact as to whose negligence caused the disaster, and where there was evidence offered and admitted on both sides, to decide whether there was such contributory negligence on the part of the plaintiff as would deprive him of redress.-- Wyatt v. Railroad Co., 62 Mo. 408; Lottmann v. Barnett, 62 Mo. 160; Stoddard v. Railroad Co., 65 Mo. 515; Smith v. Railroad Co., 61 Mo. 588.

THOMPSON, J., delivered the opinion of the court.

This is an action by a servant to recover damages from his master for an injury alleged to have resulted from the negligence of the latter. On December 15, 1879, the defendant was proprietor of an establishment in St. Louis in which was carried on the manufacture of candles, soap, and oil. In carrying on this business he had in his works a tank, in which, as we understand the testimony, the rendering of the tallow or grease was effected by means of steam. This tank was made of copper and was sunk in a well, some thirty feet deep. Surrounding this tank of copper, with a space between, was another tank made of iron. The process of rendering was carried on by forcing hot steam into the annular space between these two tanks. Surrounding the outer tank, and between it and the wall of the well, was another annular space about three feet in width, which was left for the purpose of permitting access to the outer tank when necessary to repair it. Midway between the top and bottom of this annular space was a platform on which were placed ladders, to be used by workmen in repairing the upper portion of this outer tank. The lower portion would likewise be repaired when necessary, by means of ladders let down from the platform to the bottom of the well. This annular space between the two tanks was filled with steam by means of steam boilers and connecting pipes. The platform was built of wood. It had been built some years before the above date, and the testimony is conflicting whether or not it had been rebuilt, remodelled, or repaired in the month of May preceding. There is testimony tending to show that while the steam was on, which was all the time except Sundays or during repairs, the heat between the outer tank and the wall was about 135° Fahrenheit, and that it was damp from the occasional escape of steam, and from water which would accumulate in the bottom of the well, and which had to be bailed out from time to time. It is obvious that wood would rapidly decay in such a temperature; that soft wood would disintegrate much more rapidly than hard wood; and this will perhaps account for the accident which happened, when it is stated that the platform in question was made of pine.

The plaintiff was employed by the defendant as engineer, at a salary of $15 a week. As such it was his duty to superintend the steam boiler and connecting pipes, and the process of filling and emptying the inner tank or vat. He was an experienced machinist, and the testimony tends to show that it was also his duty to make such repairs to the tanks as were practicable without calling in the assistance of experienced boiler-makers. He denies in his testimony that it was his duty to go upon the ladders supported by the platform spoken of, in order to make repairs, and claims that he did it gratuitously; but his petition states that such was his duty, and the whole testimony shows such to have been the fact, and his testimony under this head is not ingenuous. It does not necessarily follow, however, from anything in the evidence, that it was his exclusive duty to inspect and keep in repair the wooden platform. A carpenter was employed at the works, whose duty it was to make repairs in wood, and he, it seems, made any repairs in the platform or ladders which he was requested to make by the engineer or by Mr. Goodwin, the superintendent, to whom, as the proof shows on both sides, the defendant had committed the entire superintendency of the works, and whom he had specially charged to take measures for the safety of the employees. There was no evidence from which the jury could properly have inferred that it was the duty of this carpenter to inspect and keep in repair this wood-work, but it was undoubtedly Mr. Goodwin's duty to do so; and the crucial point in this case is, was it also the duty of this plaintiff.

At the date of the accident he had been in the employ of the defendant about three months, and prior to that time he had had but one occasion to go down into this outer annular space for the purpose of repairing the outer tank, which was about a month before. He had never inspected the platform, though he had observed that the ladders were unsafe, and had requested the carpenter to make new ones.

At the date of the accident a leak had been discovered in the outer tank; it was allowed to cool down over Sunday, and early on Monday morning the plaintiff and Mr. Groll, the fireman, went down for the purpose of repairing it. When they were ascending the platform gave way, and they were precipitated to the bottom of the well, where the plaintiff sustained injuries which compelled the amputation of one of his legs, and Groll sustained injuries which are said to have resulted in his death. The platform was found at the bottom of the well, broken to pieces. The ladder on which they had attempted to make the ascent had also a piece broken off from one of its feet. Without analyzing the testimony closely, it may be said that the plaintiff's testimony tends to show that the platform gave way from a deficiency of strength, while the defendant's testimony tends to show that the cause of the accident was that, while the plaintiff was ascending the ladder, Groll, contrary to the plaintiff's caution, got upon it and attempted to ascend also; that the ladder would not sustain the weight of both, and broke at the foot as stated, which precipitated both of them upon the platform; and that it was their falling upon the platform which caused it to give way, and not any lack of strength to stand, without a shock, the weight which was thus upon it. With this conflict of testimony, we, of course, have nothing to do; it was wholly a question for the jury.

Before considering the instructions given and refused, we may recur to the law governing cases of this kind, as laid down by the supreme court in its most recently reported decisions on the subject. It is there laid down in substance, that a master owes a duty to his servant to exercise reasonable care, to the end that the machinery, structures, and appliances with which the servant has to do are as safe as is consistent with the end for which such machinery is intended, and with the state of improvement in the particular department of industry; that the master and servant are not under an equal duty in this regard, and that “the servant has a right to assume that the machinery or implements furnished him by the employer are safe and suitable for the business, and he is not, while the master is, required to examine them for that purpose. The master is chargeable with knowledge which he might have acquired by the exercise of due care, the same as if he actually possessed it; whereas the servant has the right to assume that all the necessary examinations have been made by the master, and is not required, either in person or by another employed by him for the purpose, to examine the machinery as to its fitness and...