Shortel v. City of St. Joseph

• Decision Date: 11 May 1891
• Parties: SHORTEL v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

16 S.W. 397

104 Mo. 114

SHORTEL v. CITY OF ST. JOSEPH.

Supreme Court of Missouri, Division No. 1.

May 11, 1891.

INJURY TO EMPLOYE — CONTRIBUTORY NEGLIGENCE — DIRECTIONS OF VICE-PRINCIPAL.

An unskilled day-laborer, who is injured by the collapsing of an arch of a sewer from which he was taking the supports by order of the engineer in charge, can recover from the city unless it be shown that the danger was so obvious that a prudent person, though acting in the capacity of servant, would have disobeyed the order to remove the supports of the arch.

Appeal from circuit court, Buchanan county; O. M. SPENCER, Judge.

B. R. Vineyard, for appellant. M. A. Reed, for respondent.

BLACK, J.

The plaintiff brought this suit to recover damages for personal injuries received while engaged in repairing a sewer. The work was done by the city engineer, who procured the material, employed the men, and superintended the work by authority of a city ordinance. The petition alleges that, after a section of the sewer had been arched over, the engineer directed plaintiff and one Murray to go under the arch and remove the supports; that the engineer assured the plaintiff and Murray that it was safe to do so; that, relying upon the assurance, they proceeded to carry out the order, and while thus engaged the arch fell in on the plaintiff; and that the injury to plaintiff was caused by the negligence of the engineer in causing the supports to be removed before the cement used in the walls had hardened. The answer was a general denial, and contributory negligence on the part of the plaintiff. According to the bill of exceptions, the plaintiff introduced evidence tending to prove all of the allegations of the petition; that he was a day-laborer, not skilled in the work, was not warned of the danger, and that none but a skilled person would, by the use of ordinary care, have foreseen the danger. And the defendant offered evidence tending to show that the danger was so obvious and apparent that any person, skilled or unskilled, could by the exercise of ordinary care have foreseen and avoided the danger; and that plaintiff was warned of the danger attending the undertaking. The court, at the request of the plaintiff, instructed the jury that, if they believed the engineer, after the completion of a section of said sewer, directed the plaintiff and others to remove the supports under said section, and assured them that it was perfectly safe to do so, when in point of fact it was not safe, and that the plaintiff was unskilled in the matter of safety or unsafety thereof, then the defendant is liable for any injury resulting to plaintiff therefrom, even though the plaintiff or others in his presence might have entertained or expressed the opinion that the removal of said supports was unsafe, if the plaintiff, in assisting in such removal, acted upon said assurance of said engineer, unless the...