Cooney v. Laclede Gas Light Company
| Decision Date | 08 December 1914 |
| Citation | 171 S.W. 572,186 Mo.App. 156 |
| Parties | JOHN COONEY, Respondent, v. LACLEDE GAS LIGHT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
November 5, 1914, Argued and Submitted
Appeal from St. Louis City Circuit Court--Hon. Daniel D. Fisher Judge.
Judgment affirmed.
Percy Werner for appellant; Garner W. Penney of counsel.
(1) The court erred in refusing to direct a verdict for the defendant, and in overruling motion for new trial. (a) The duty of a master to furnish a safe place to work does not require him to provide against hazards such as are ordinarily incident to the employment, as where the danger is temporary and when it arises from the hazard and progress of the work itself. This rule is particularly applicable to dangers arising out of the demolition of structures. Ziegenmeyer Admr., v. Goetz Lime & Cement Co., 113 Mo.App. 330; Henson v. Packing Company, 113 Mo.App. 618, 621; Bloomfield v. Worster Construction Co., 118 Mo.App 254; Clark v. Liston, 54 Ill.App. 578; Chicago Edison Co. v. Davis, 93 Ill.App. 284; Merchant v. Mickelson, 101 Ill.App. 401; Western Wrecking Co. v. O'Donnell, 101 Ill. 492; Chicago & Marion Coal Co. v. Reese, 126 Ill.App. 567; William Grace v. Kane, 129 Ill.App. 247; Armour v. Hahn, 111 U.S. 318; 1 Labatt, Master and Servant, sec. 259; Thompson on Negligence, sec. 3876. (b) An exception does obtain where the injured servant, engaged in such work is acting under the direct orders of a foreman, who undertakes to make it safe, in which case the servant is not bound to make inspection to determine the safety of his place of work; but the facts of this case do not bring it within the exception. Wesner v. Railroad, 163 S.W. 298; Bloomfield v. Worster Const. Co., 118 Mo.App. 254. (2) The first instruction given to the jury on behalf of the plaintiff was unwarranted by the evidence, erroneous and misleading. See authorities cited under point 1.
John B. Dempsey for respondent.
The court properly directed the jury, for the reason: That while it is true that an exception to the general rule requiring the matser to provide his servant with a safe place to work, arises, "Where the danger is temporary, and when it arises from the hazards in the progress of the work itself," and that the rule, as modified, "is particularly applicable to dangers arising out of the demolition of structures," yet we have no such case here. We have here no state of facts to which the following definition will apply: "The rule of safe place does not apply to a wrecking job, for the reason that under the conditions of tearing down, the work itself renders unsafe a place otherwise safe." Bloomfield v. Worster Construction Co., 118 Mo.App. 254. For in the labor of making a safe place one of unsafety, there is essentially a hazard incident thereto which the servant assumes. Work which in its nature for the time being renders the place of performance to some extent insecure, justifies the exception to the rule of safe place. Supra, 258; Rigsby v. Oil Well Supply Co., 115 Mo.App. 297; Gulf, Etc., v. Jackson, 65 F. 48-50; Bradley v. Railroad, 138 Mo.App. 302; Clark et al. v. Liston, 54 Ill.App. 576; Grace Co. v. Kane, 129 Ill.App. 247; Trulayson v. Utica Mining & Milling Co., 67 F. 507.
This is an action by the plaintiff to recover damages for injuries alleged to have been sustained by him while engaged in tearing down a platform upon the order of a representative of defendant, the particular work in which plaintiff was engaged at the time being the removal of the floor and footwalk from the platform, which had been used for holding coal as it was unloaded from cars. It is charged that while plaintiff was engaged in removing the planks comprising the platform, and while he was carrying a heavy plank which he was about to lower to the ground, he stepped upon a plank of the platform and the plank gave way, by reason of that plank not reaching the joist on the outside of the supporting posts and there being no joists on the inside of the posts; that this short plank did not have any support save cleats nailed underneath it and to the plank next to it, and was not strong enough by reason thereof to support the weight of plaintiff with the plank he was at the time carrying. It is averred that defendant was negligent in that it knew, or by the exercise of ordinary care could have known, that the joist above described was not in place to support the end of the plank, and that in consequence thereof the short plank was without adequate support for the load which plaintiff placed upon it, and that the platform was not a reasonably safe place for plantiff to work. It is further averred that by reason of the negligence of defendant as above set forth and of the unsafe condition of the platform or walk when he stepped upon the plank, it gave way with his weight and the added weight of the load he carried, and that plaintiff was precipitated to the ground, injuring him as described, so that for more that two months following the fall he suffered a partial paralysis of the hand and arm and was unable to hold or lift anything, and has been unable to follow his usual or any vocation, has lost wages as a laborer, will be unable to perform labor in the future, has expended and become obligated for large sums of money for medical and surgical attendance and medicines, and is permanently injured and has suffered and will suffer in the future great pain of body and anguish of mind, to his damage, etc.
The amended answer, admitting the incorporation of the defendant and that it was engaged in business as alleged, and denying every other allegation in the petition, pleads contributory negligence on the part of plaintiff and assumption of risk by him.
A trial before the court and a jury resulted in a verdict for plaintiff, from which defendant, saving exceptions to the action of the court in overruling its motion for a new trial, has duly perfected its appeal to this court.
The errors assigned here are to the refusal of the court to direct a verdict for defendant, and to error in the first instruction given on behalf of plaintiff, it being claimed that the latter was unwarranted by the evidence and was erroneous and misleading.
There was evidence tending to prove that plaintiff, a common laborer in the employ of defendant, was working for it on its premises, along which a switch track of a railroad ran, and along which track defendant had constructed a platform on which coal delivered by car to it was unloaded. On the day of the accident the foreman came to plaintiff and told him that when he was through working at the place where he was then engaged to "come along" with him. They went back across the west side of the railroad and were joined by another workman and went to this platform. The platform was about nine feet wide and from 100 to 120 feet long, the south end of it about twelve or fourteen feet from the ground, the north end about nine feet above the ground. The flooring of this platform consisted of heavy 2 x 10 boards, sixteen feet long. The foreman directed plaintiff to take all of the flooring off and to "hurry on and do it." Plaintiff, assisted by the other workman, started at the south end of the platform, working toward the north. He walked to the far end and, carrying the boards to the north end, handed them down, board by board, to the man on the ground below who was helping him. In the course of his work he had torn down the platform to within two sixteen-foot board lengths of the north end. There were about three boards lying across this north end on top of the platform. He walked out and picked up the first one, which was lying there and handed it down, then went to the second and let it down, and picked up the third, which was an oak board about eighteen feet long, walked out with that and stood with both feet on the outer plank of the platform, standing there in position to hand this board down, when the board upon which he was standing gave way under him and he was precipitated to the ground and apparently lay there unconscious for awhile. It was in evidence that the board upon which plaintiff had stepped and which had given way did not rest upon the joist at its north end and was not supported at that end by the crosspieces of the platform, but fell short of that crosspiece or joist and was supported at the end by a cleat nailed under it and to the adjoining plank, and that the weight of plaintiff, with the added weight of the plank he was carrying, had caused the nails in the cleat to give way, the cleat parted from the board, and so it fell, carrying plaintiff with it. This is a brief but, as we think, a fair statement of the accident.
Plaintiff testified that he had no knowledge whatever of the manner in which this particular plank was supported, did not know that it was only supported by this cleat and that the end of it did not rest on anything; and in point of fact, he testified that he had not made any examination of the platform but had worked where he was told by the foreman to work. This was practically the evidence given by plaintiff, he being corroborated in it by the man who was working with him at the time. In addition to this there was testimony as to the nature and extent of his injuries, expenditures, etc.
At the conclusion of plaintiff's evidence, defendant moved for a directed verdict. This the court refused, defendant excepting.
On its part, the testimony of defendant, being that of the foreman was to the effect that the foreman had left to the plaintiff the detail of the work; had not told him to go up on the platform; that he could have done the work just as well from under it as to have gone...
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