O'Donnell v. Patton

• Decision Date: 19 June 1893
• Citation: 117 Mo. 13,22 S.W. 903
• Parties: O'DONNELL v. PATTON.
• Court: Missouri Supreme Court

22 S.W. 903

117 Mo. 13

O'DONNELL v. PATTON.

Supreme Court of Missouri, Division No. 1.

June 19, 1893.

DANGEROUS PREMISES — CONTRIBUTORY NEGLIGENCE.

Plaintiff went on defendant's premises to purchase and haul away a load of shavings. The pile from which he was to get his load was 40 feet high, with a steep face, partially undermined, and was top-heavy with ice. He knew its condition, and in loading his wagon negligently undermined it, causing it to fall upon him. Held that, though defendant owed to plaintiff the duty to exercise reasonable care to keep his premises in a reasonably safe condition for the use of plaintiff in transacting his business, plaintiff was barred from a recovery by his contributory negligence.

Appeal from Hannibal court of common pleas; Thomas H. Bacon, Judge.

Action by Thomas W. O'Donnell, by guardian, against John M. Patton. From a judgment for defendant, plaintiff appeals. Affirmed.

D. H. Eby, for appellant. Harrison & Mahan, for respondent.

MACFARLANE, J.

The suit is for damages for personal injuries sustained by plaintiff by reason of a pile of sawdust and shavings falling upon him. The petition charged that defendant owned and operated in the city of Hannibal a steam saw and planing mill, the sawdust and shavings of which were negligently allowed to accumulate on his premises, and under his care, control, and management, about "forty feet high, with a precipitous face, and partially undermined, and top-heavy from the accumulation of ice in the upper portion of said pile, and thereby dangerous to persons being near it; that on said 8th day of February, 1889, and for a long time prior thereto, defendant had offered said shavings and sawdust constituting said pile for sale, and sold portions of the same by the wagon load and otherwise to various persons, and had solicited any and all persons desiring to purchase shavings or sawdust to get the same at and from said pile, which had frequently been done by numerous persons prior to and up to and including said 8th day of February, 1889, of all which the defendant had due notice; that on the day last aforesaid the said plaintiff drove up to said mill in a one-horse wagon, and applied to William H. Hibbert, who was the agent, servant, and employe of defendant in charge and control of said mill and said pile, for shavings and sawdust, stating to said Hibbert that he, plaintiff, desired to purchase the same; that the said Hibbert, as such agent, servant, and employe, sold to plaintiff two loads of shavings from said pile for the agreed price of twenty-five cents, and then and there carelessly and negligently pointed out said pile to plaintiff, and carelessly, negligently, and wrongfully told him, the said plaintiff, to go to the same, and get said shavings; that plaintiff, being unaware of the said dangerous condition of said pile, immediately drove up to the same, and proceeded to load his wagon with the shavings and sawdust lying at the base of said pile between the same and said wagon, and the said Hibbert, as such agent, servant, and employe of said defendant, as aforesaid, knowingly, carelessly, and negligently permitted and allowed plaintiff to go to and be at and near said pile as aforesaid; that while he was engaged in getting said shavings and sawdust, and being in the exercise of due care and caution on his part, said pile, by reason of its condition as aforesaid, suddenly fell over onto and upon plaintiff, who was in his said wagon, thereby breaking, wounding, and disabling one of his legs, and injuring him internally,"—and asked damages for $10,000. Defendant, by answer, denied generally the allegations of the petition, and charged that whatever injuries plaintiff may have sustained happened in consequence of, and were occasioned solely by, the want of due and proper care and watchfulness and attention on his own part while he was in and upon the grounds and premises of the defendant for his own purposes, and by reason of his failure to be watchful for his own safety, without any negligence or carelessness or want of due and proper care on the part of this defendant, his agents or servants, thereto in any wise contributing; that plaintiff deliberately and of his own accord, and against the will and notice and direction of the defendant and his servants, negligently and carelessly dug down and undermined a pile of shavings situated on the defendant's premises, at the place mentioned in the plaintiff's petition, causing the same to fall on him, and thereby and then causing such injuries as he may have sustained, he well knowing at the time the condition of said pile of shavings. The abstract of the record shows that on the trial the "evidence in the case tended to support the cause of action stated in the petition, as well as defendant's plea of contributory negligence. The court gave the jury two instructions at the request of the plaintiff, and eight at request of defendant, and five on its own motion. The jury found a verdict for the defendant, and plaintiff appealed.

Instructions 3, 5, and 6, given at request of defendant, are as follows: "(3) The court instructs the jury that by `ordinary care' is meant such care as would be ordinarily used by prudent persons under similar conditions and circumstances; and if the jury should believe from the evidence that the said Thomas W. O'Donnell might have avoided the accident and injury by the exercise of ordinary care under the...