Strother v. Kansas City Milling Co.

• Decision Date: 02 July 1914
• Docket Number: No. 16717.,16717.
• Citation: 169 S.W. 43,261 Mo. 1
• Parties: STROTHER v. KANSAS CITY MILLING CO.
• Court: Missouri Supreme Court

169 S.W. 43

261 Mo. 1

STROTHER v. KANSAS CITY MILLING CO.

No. 16717.

Supreme Court of Missouri, Division No. 1.

July 2, 1914.

Rehearing Denied July 14, 1914.

1. MASTER AND SERVANT (§ 197)—INJURIES TO SERVANT — SUPERINTENDENT — FELLOW SERVANT.

Where decedent, a millwright, was ordered by his superintendent, who had exclusive supervision of the acts of decedent and others employed in defendant's mill, to assist in putting on a heavy belt, and was injured by the superintendent's alleged negligence in failing to warn him when the belt had been so placed that it was affected by the live pulley in motion, decedent and the superintendent were not fellow servants.

2. NEW TRIAL (§ 39)—GROUNDS—ABSTRACT INSTRUCTIONS.

Where decedent was injured by the alleged negligence of defendant's superintendent whom he was assisting to adjust a belt, and both plaintiff and defendant introduced evidence to show that one of the superintendent's hands was disabled, the fact that the crippled hand was not claimed to have had anything to do with the accident under the theory of either party, and was not connected with the accident in any causal way, did not make the giving of an instruction for defendant, that there was no evidence that the condition of the hand directly caused or contributed to cause plaintiff's injury, and the jury's finding on that issue must be for defendant, ground for sustaining an order granting plaintiff a new trial.

3. NEW TRIAL (§ 39)—GROUNDS—INSTRUCTIONS —EVIDENCE.

Where, in an action for injuries to decedent by the alleged negligence of his superintendent in failing to warn him when a belt they were setting began to catch the pulley, whether the warning was, in fact, given was the main issue in the case, an instruction directing a verdict for defendant, though it was negligent, and though such negligence was the direct cause of plaintiff's injury, provided the jury found that defendant's negligence consisted "solely" in the superintendent's choice of the "method of place performing such work," and also found that both defendant and decedent were, or by ordinary care should have been, equally advised that such method was not reasonably safe, and equally advised of all the dangers incident to the work according to such method, which instruction was wholly unsupported by the evidence, was erroneous and ground for new trial.

4. MASTER AND SERVANT (§ 203) — INJURIES TO SERVANT—"ASSUMED RISK."

"Assumption of risk" is a term or condition in a contract of employment, either express or implied from the circumstances of the employment, by which the employé agrees that the dangers of injury ordinarily or obviously incident to the discharge of his duty and the particular employment shall be at his own risk. In Missouri, however, the doctrine is subject to modification, in that there is another provision, express or implied, that the master will exercise ordinary care to protect the servant by providing him with a safe place to work, the risks assumed being only those which remain after the master has exercised ordinary care,

the servant not being required to assume the risks of the master's negligence in a situation springing suddenly and imperiously demanding the instant use of care and caution.

5. APPEAL AND ERROR (§ 882)—INSTRUCTIONS —RIGHT TO ALLEGE ERROR.

Where decedent in his own instructions submitted the issue of due care, he could not object to an instruction submitting the issue of contributory negligence as an affirmative defense.

6. MASTER AND SERVANT (§ 296)—CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS.

An instruction on contributory negligence that decedent "was bound to use his senses and intelligence and experience" in and about the doing of his work, and, if he failed to use either to the extent to which a person of ordinary care of his age and experience would have used them under the circumstances, and such failure directly contributed to cause his injuries, then he could not recover, was improper in the use of the clause quoted, as calculated to mislead.

Appeal from Circuit Court, Jackson County; Edward E. Porterfield, Judge.

Action by Edward B. Barker, revived after his death pending appeal in the name of Sam B. Strother, as administrator of plaintiff's estate, against the Kansas City Milling Company. From an order granting plaintiff a new trial after verdict for defendant, it appeals. Affirmed.

Boyle & Howell, Joseph S. Brooks, D. W. Johnson, E. R. Morrison, and Edw. J. White, all of Kansas City, for appellant. Shannon C. Douglass, Isaac N. Watson, and Walter W. Calvin, all of Kansas City, for respondent.

LAMM, J.

In a case sounding in tort in the Jackson circuit court, wherein the damages were laid at $15,000, the jury found for defendant. Thereat, on motion, the court ordered the verdict set aside, granting a new trial on the ground of error in defendant's given instructions. Thereat defendant, a corporation, appealed from such order. Plaintiff dying pending appeal, Strother, administrator, is substituted. For convenience we continue to use "plaintiff."

Defendant owned a flouring mill in Kansas City of a capacity of 600 barrels daily. In this mill were devices known as bleachers, agitators, and conveyors operated by belts, pulleys, and shafting and run by steam power. These bleachers, etc., were devices to whiten the flour by the use of a current of air and electricity. One Brown was defendant's superintendent and in full control and management of the mill and all the men employed therein. About four weeks before the accident, plaintiff, a millwright, was employed by Superintendent Brown to make some alterations in or put in some new bleachers. The bleachers or alterations were completed ready for testing, and while to that end plaintiff was assisting Brown in putting on a belt connecting the bleachers with the power he was thrown off a ladder and severely injured by the sudden and unexpected starting of the machinery. His suit for damages is bottomed on those injuries, and there is no question here as to their gravity.

It will not be necessary to set forth even a summary of the petition; for plaintiff's principal instruction was within its allegations, and we reproduce that to show the pleaded grounds of negligence and the theory on which recovery was sought, viz.:

"The court instructs the jury that it was the duty of defendant to exercise ordinary care to furnish plaintiff a reasonably safe place in which to do his work, and to do no act of negligence, as defined by these instructions, which would render such place not reasonably safe for plaintiff to perform the usual and ordinary work required of him by defendant, while engaged in its performance, taking into consideration the kind and character of work to be done and the place in which it was to be done. If, therefore, you shall find and believe from the evidence that on or about the 20th day of August, 1904, plaintiff was in the employ of defendant as mill-wright, at its mill in Kansas City, Mo., and if you shall further find and believe from the evidence that the defendant, at said time and place, had in its employ Patrick Brown as superintendent or head miller at its said mill, and that said Brown had authority to hire and discharge plaintiff and direct him what to do and how to perform his duties in said mill, and if you shall further find and believe from the evidence that on or about the said date plaintiff was ordered and directed by said Brown, in his capacity as superintendent or head miller as aforesaid, to get a ladder and go upon same, and thereby assist said Brown to put a belt upon the pulley mentioned in evidence, and if you shall further find from the evidence that, in obedience to said order, plaintiff did go upon said ladder, and while standing thereon it became reasonably necessary for plaintiff to occupy a stooping position for the purpose of raising the slack in said belt, and that he did occupy said stooping position on said ladder for the purpose aforesaid at and immediately before the happening of the injury complained of, and if you shall further find and believe from the evidence that while plaintiff was in such stooping position on said ladder for the purpose aforesaid, if you find he was in such position, defendant's superintendent or head miller, Patrick Brown, without warning to plaintiff, and without plaintiff's knowledge of his intention so to do, negligently and suddenly threw the belt into position on said pulley to start said belt and pulley revolving, and if you shall further find and believe from the evidence that by reason of such act of suddenly throwing said belt upon said pulley and starting it to revolving as aforesaid, if you find he did so, the position or place in which plaintiff was working was rendered extra or unusually hazardous, and not a reasonably safe place for plaintiff to work, and was not a usual and ordinary danger of such employment, and if you shall further find from the evidence that said Brown knew, or, by the exercise of ordinary care on his part, could have known, of the position in which plaintiff was situated immediately before and at the time of the putting on of said belt, and of the increased and unusual hazard, if any, of starting said belt and pulley while plaintiff was in such stooping position, if you find he was in such stooping position at said time, and that said Brown, under all the facts shown in evidence could, by the exercise of ordinary care on his part, have warned plaintiff that he was going to put said belt on said pulley in time to have permitted the plaintiff to have let go of said belt, if you find he had hold of the same, but said Brown failed to do so, and if you shall further find and believe from the evidence that at said time and place plaintiff was in the exercise of such care for his own safety as a reasonably prudent person would exercise under like or similar circumstances, and that as a direct result of said Brown's suddenly...