Troth v. Norcross

• Citation: 20 S.W. 297,111 Mo. 630
• Parties: Troth, Appellant, v. Norcross et al
• Decision Date: 17 October 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 297

111 Mo. 630

Troth, Appellant, v. Norcross et al

Supreme Court of Missouri, Second Division

October 17, 1892

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

Sherry & Hughes for appellant.

(1) The master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. The position of the servant is one of subordination and obedience to the master, and he has the right to rely upon the superior knowledge and skill of the master. The servant is not free to act upon his own suspicions of danger. Shortell v. St Joseph, 104 Mo. 120; Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Railroad, 96 Mo. 209. (2) Mallon was defendant's vice principal, and not the plaintiff's fellow servant. Gormley v. Iron Works, 61 Mo. 492; Whalen v. Church, 62 Mo 326; Cook v. Railroad, 63 Mo. 397; Stephens v Railroad, 96 Mo. 229; Moore v. Railroad, 85 Mo. 588. (3) Mallon's acts and words were an assurance to the plaintiff that it was safe for him to work where he was directed to go, and he had a right to assume that the elevator had been secured; at least, it was a question for the jury, and not for the court. (4) The fact that a person injured had previous knowledge of the danger is not conclusive evidence of negligence on his part. It is a fact to be submitted, with other evidence, to the jury, and in an action to recover damages for an injury caused by such defect it is only necessary for plaintiff to show that he exercised ordinary care to avoid the accident. A strong case in point is the case of Huhn v. Railroad, 92 Mo. 440; Flynn v. Railroad, 78 Mo. 195; Conroy v. Iron Works, 62 Mo. 35; Porter v. Railroad, 60 Mo. 160; Dale v. Railroad, 63 Mo. 455; Stoddard v. Railroad, 65 Mo. 521; Snow v. Railroad, 8 Allen, 441; Patterson v. Railroad, 76 Pa. St. 393; Hanley v. Railroad, 82 N.Y. 370; Huddleston v. Machine Shops, 106 Mass. 282; Ford v. Railroad, 110 Mass. 240; Lawless v. Railroad, 136 Mass. 1. (5) "The primary duty of the servant is obedience. He naturally looks to his employer for the observance of all reasonable and proper precaution for his safety." Keegan v Kavanaugh, 62 Mo. 232. (6) The fact that an employe is directed by his superior in charge to do an act at a time and under circumstances as that a person would reasonably apprehend danger would not justify his disobedience of such orders, and obedience is not negligence. Fransden v. Railroad, 3 Iowa, 372; Patterson v. Railroad, 76 Pa. St. 389; Le Clair v. Railroad, 20 Minn. 9. (7) If the master or another servant standing toward the injured servant in the relation of a superior, orders the servant into a place of danger, and he obeys and is injured, the law will not charge him with contributory negligence. Miller v. Railroad, 12 F. 600; Miller v. Railroad, 17 F. 67. (8) "The master is bound to the servant to supply the latter with proper materials for work, and to surround him with such guards as will enable the work to be safely performed by the servant. If through the employe's negligence in this respect the servant is injured the master is liable to the servant to make good the damages." Wharton on Negligence, sec. 720.

Warner, Dean & Hagerman for respondents.

OPINION

Gantt, P. J.

This is an action for personal injuries. Plaintiff was in the employment of defendants, who were partners and contractors for some of the work in the erection of the New York Life Insurance Company's building, Ninth and Wall street, Kansas City, Missouri.

The petition alleges that plaintiff was in the employ of defendants as a laborer on this building; "that while so engaged on the fourteenth of May, 1888, he was ordered by the foreman of defendants, whose orders he was bound to obey, to place a chain around an iron beam reaching across the elevator way in the fifth story of said building; that, while attempting to place said chain around said iron beam, the elevator was negligently, carelessly, and without notice or warning to plaintiff, caused and permitted to descend from the sixth story of said building, upon the head and shoulders of plaintiff, whereby he was permanently injured; that he was greatly bruised and mangled, solely on account of the negligence of defendants, in failing and omitting to provide suitable and proper rules for the running and management of said elevator whereby plaintiff could have been warned of its descent, and in permitting it to descend on plaintiff without notice or warning."

The damages were laid at $ 20,000.

The answer was: First. General denial except the partnership; second, contributory negligence. Then as follows:

"Third. The defendants further state that at the time of the alleged injuries to the plaintiff, and for a long time prior thereto, he knew that the elevator was constantly ascending and descending the building referred to, and that he entered and continued in the service of defendants with full knowledge thereof, and assumed all risks incident to the moving of said elevator, thereby waiving any claim for any damage which might result to him from the said elevator while he was in the employ of defendants, and, therefore, he cannot maintain the action.

"Fourth. Defendants further state that the plaintiff, while in the service of the defendants at the time complained of, knew that the said elevator was running, and, by the exercise of ordinary care on his part, could have avoided being struck by the same."

The reply was denial of contributory negligence and general denial of all matter pleaded in third and fourth counts of defendants' answer.

The plaintiff to sustain the issues, on his part, testified in his own behalf to the effect that he was a man twenty-four years of age. He was a stationary engineer by occupation; he was employed April 3, 1888, to work on the building, by the assistant superintendent; had been at work in the building about six weeks when hurt. He was taken to one Mallon, as his boss, and told to obey him. On the morning he was hurt, Mallon sent him to the basement for a chain. When he returned, he found Mr. Mallon trying to fasten a guy rod to the iron beam in the elevator way. Mallon said to him: "I can't reach it, come over and help me put it on." Mallon was sitting on the back end of the beam that ran up the side of the elevator shaft, trying to put the chain on. When Mallon called him, plaintiff to use his own language, "walked over to where Mallon was working and got down and set straddle of the beam. * * * And about the time I got down they let the elevator down and hit my head and shoulders and mashed me down, and bruised my head and shoulders. * * * There was no rule or regulation that I know of about running the elevator, except there was a man at the top and one at the bottom, ringing an electric bell before they started down."

The elevator weighed five hundred to seven hundred pounds. It passed from top to bottom in a few seconds. It was run by an engine in the basement. When it was at the top and they wanted to go down, they would ring a little bell and the engineer would draw that out and it would unwind on the drum. The space back of the elevator on this iron beam was just large enough for a man to stay there by crouching close to the wall, about twenty inches. Mallon was in no danger where he sat. When plaintiff was struck, he fell over into Mallon's lap and was held by him until help came. He testified that the elevator had been running up and down that morning before he was hurt....