22 S.W. 1113 (Mo. 1893), Fugler v. Bothe

Citation:22 S.W. 1113, 117 Mo. 475
Opinion Judge:Biggs, J. Per Curiam.
Party Name:Fugler v. Bothe et al., Appellants
Attorney:Lubke & Muench for appellants. E. P. Johnson for respondent.
Judge Panel:Biggs, J. Rombauer, P. J., dissenting. Judge Barclay not voting. Rombauer Rombauer, P. J. (dissenting).
Case Date:October 21, 1893
Court:Supreme Court of Missouri
 
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Page 1113

22 S.W. 1113 (Mo. 1893)

117 Mo. 475

Fugler

v.

Bothe et al., Appellants

Supreme Court of Missouri, First Division

October 21, 1893

         Editorial Note:

         This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

          Certified from St. Louis Court of Appeals.

         This case was certified from the St. Louis court of appeals upon a division of opinion in that court. The opinion of Judge Biggs and the dissenting opinion of Judge Rombauer are set out in this report and the dissenting opinion approved as properly declaring the law.

          Reversed and remanded.

         Lubke & Muench for appellants.

         (1) The trial court should have sustained the motion to make the petition more definite and certain. The general allegations of negligence were good only on demurrer or motion in arrest of judgment. But the matters called for by this motion were essential to give a right of action, and should have been specifically stated on the request therefor by appellants. Revised Statutes, 1879, sec. 2057; Bliss on Code Pleading, sec. 425; Edwards v. Railroad, 74 Mo. 117. (2) The trial court erred in excluding the evidence to show that by comparison the gutter projection was as safe as the ordinary swinging platform commonly used by carpenters, painters and tinners. The question being one of negligence, this testimony was competent to show appellants did only what other persons are constantly doing under like circumstances. (3) The trial court erred in refusing the instruction that respondent was not entitled to recover. First. Because there was no evidence to show that Fugler fell from the gutter projection; or if he did fall, that the same was traceable to any act or omission of appellants. Moore v. Railroad, 28 Mo.App. 622; Shertle v. Railroad, 97 Pa. St. 450. Second. Because, under all the evidence and physical facts, the perils, whatever they were, of working on the gutter projection were so obvious that Fugler, being a skilled workman, was bound to take notice of them, and assumed their risks as an incident to his trade. Nolan v. Shickle, 69 Mo. 336; McDermott v. Railroad, 87 Mo. 285; Steffen v. Mayer, 96 Mo. 420; Devanney v. Peper, 12 Mo.App. 588; Walters v. Wire Co., 14 Mo.App. 592; Sparks v. Railroad, 31 Mo.App. 111; Woerheide v. Foundry Co., 32 Mo.App. 367. Third. Because the alleged refusal of appellants to allow the erection of scaffolding had no reference to the fourth shaft. Nolan v. Shickle, 69 Mo. 336; McDermott v. Railroad, 87 Mo. 295. Fourth. Because, under all the evidence, the projection was a reasonably safe place. Devlin v. Railroad, 87 Mo. 545. (4) The first instruction given for respondent was erroneous. It made appellants liable if the projection was in any degree "an unsafe place" to do this work on. It made appellants insurers. The law is quite the other way; the master is not an insurer, and is bound only to use ordinary care to provide his servant with a reasonably safe appliance and place to work in. Devlin v. Railroad, 87 Mo. 552. (5) The court erred in refusing the instruction marked number 2, refused, asked by appellants, and erred in modifying that instruction by adding the words, "and that the danger of so doing the work was apparent and threatening." (6) The instruction given for respondent on the measure of damages was erroneous, because it was not qualified as required by the statute. (Revised Statutes, 1889, sec. 4427.) The jury were not confined to the "necessary injury" nor were they directed to have "regard to the mitigating or aggravating circumstances." (7) The trial court should have set aside the verdict as not supported by substantial evidence, showing negligence of appellants. Taylor v. Fox, 16 Mo.App. 527; Lionberger v. Pohlman, 16 Mo.App. 392. See dissenting opinion of Judge Rombauer -- Fugler v. Bothe, 43 Mo.App. 62.

         E. P. Johnson for respondent.

         (1) The evidence was ample (and moreover direct) to go to the jury to show that Fugler fell from the gutter projection, and that the fall was caused by the negligence of the appellants. Soeder v. Railroad, 100 Mo. 673; Schlereth v. Railroad, 96 Mo. 514; Schultz v. Moon, 33 Mo.App. 340, 341; Bueshing v. Gas Company, 73 Mo. 230; Kelly v. Railroad, 70 Mo. 607. Moore v. Railroad, 28 Mo.App. 622, cited by appellants, is in plain contradiction of the foregoing. (2) It is presumed that Fugler did know there was danger and took notice of it, but it was the duty of appellants to provide him a safe place to work (Bishop on Non-Contract Law, sec. 683) and a failure to do this and keep it so was continuing negligence. Parsons v. Railroad, 94 Mo. 288 on p. 292. (3) Fugler's failure to protest or to receive assurance of safety, or his knowledge of the danger, or his right to quit the service, would not defeat a recovery if the guttering was not so dangerous as to threaten immediate injury, or to be plainly perilous to life or limb, or if he might have reasonably supposed he could safely work on the guttering by the use of care and caution. Williams v. Railroad, 18 S.W. 1098; Soeder v. Railroad, 100 Mo. 673; Stephens v. Railroad, 96 Mo. 207; Huhn v. Railroad, 92 Mo. 440; Hughes v. Fagin, 46 Mo.App. 43; Fugler, v. Bothe, 43 Mo.App. 44; Shortel v. St. Joseph, 104 Mo. 120. (4) The first instruction given for respondent is technically correct and perfect as against appellants, the word unsafe being the antithesis of safe and of reasonably safe. It threw the burden of proving no contributory negligence on the part of Fugler, on the respondent, when there was not a scintilla of evidence to support it, and with this exception is precisely such an instruction, in an almost exactly similar case, including details of construction, plats, etc., as was approved in the case of Bowen v. Railroad, 95 Mo. 268, on p. 276, and that the instruction is correct and the petition good, and respondent had a right to combine and rely on all the acts of negligence of appellants, see Johnson v. Railroad, 96 Mo. 340, p. 348, when but one instruction was given, and Dowell v. Guthrie, 99 Mo. 653, on p. 665. But if this instruction had been erroneous, it was cured by instruction number 5. Owens v. Railroad, 95 Mo. 169; Dougherty v. Railroad, 97 Mo. 647; Schroeder v. Michel, 98 Mo. 43; Company v. Guggemos, 98 Mo. 391; Fugler v. Bothe, 43 Mo.App. 44; Shortel v. St. Joseph, 104 Mo. 119.

         Biggs, J. Rombauer, P. J., dissenting. Judge Barclay not voting.

          OPINION

          [117 Mo. 479] Biggs, J.

         -- Charles H. Fugler, the plaintiff's deceased husband, was employed by the defendants in the construction of a building in the city of St. Louis. While in this employment the deceased fell from the second story of the building to the first floor, thereby receiving injuries which resulted in his immediate death.

         The petition, after alleging that the deceased was a carpenter by trade, averred that his death was caused by the negligence of the defendants, by reason of their failure to provide a safe and proper place for him to perform the work required of him. The negligence thus complained of was stated as follows: "That the defendants were then constructing a light and air shaft in said building, to reach from the second floor thereof to the top of the same, the dimensions of which were about eight by eleven feet, in which space no floor had been laid in said second floor and it was open, except a guttering that projected fifteen inches inward all around, from the walls of said shaft, upon which guttering it was necessary for said Charles H. Fugler to stand and work; that the foreman of defendants in charge of said building, commenced the erection of a scaffold for the purpose of making a safe and proper place for said Charles H. Fugler and others to work in the construction of said shaft but the defendants instead of permitting him to proceed in the erection of the same carelessly and negligently and recklessly, refused to permit him to do so and peremptorily ordered that the work proceed in the construction of said shaft, without a scaffold, and the same Charles H. Fugler then proceeded [117 Mo. 480] to work on said shaft and in consequence of the aforesaid wrongful act, neglect and default of the defendants the said Charles H. Fugler, while so engaged at work fell from said shaft upon the floor of said building and his death was caused thereby on said day."

         The defendants filed a motion to make this petition more specific and certain. The complaints were, that the petition failed to show whether Fugler was an experienced or inexperienced workman; it failed to show whether or not the danger to which it was alleged the deceased was exposed was obvious or hidden; and, further, it was nowhere averred that the defendants had made Fugler any assurances that it would be safe for him to do his work from the gutter, or that he relied upon such assurances. The court overruled the motion and the defendants saved their exceptions by then and there tendering a bill of exceptions.

         In their answer, the defendants after making a general denial, averred that the death of Fugler was an accident or that it happened because of his imprudence, carelessness or thoughtlessness directly contributing thereto. This was denied by the reply. Upon the issues thus made up, the case was submitted to a jury. There was a finding and judgment in the plaintiff's favor for thirteen hundred dollars. From this judgment the defendants have appealed.

         The first assignment of error presents for our consideration the action of the court touching the defendants' motion to make the petition more specific and certain. The plaintiff's right of recovery was in no way predicated upon the idea that the deceased...

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