31 S.W. 340 (Mo. 1895), Lucey v. The Hannibal Oil Company

Citation:31 S.W. 340, 129 Mo. 32
Opinion Judge:Burgess, J.
Party Name:Lucey, Appellant, v. The Hannibal Oil Company
Attorney:Thomas H. Bacon for appellant. F. L. Schofield and Geo. A. Mahan for respondent.
Case Date:June 04, 1895
Court:Supreme Court of Missouri
 
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Page 340

31 S.W. 340 (Mo. 1895)

129 Mo. 32

Lucey, Appellant,

v.

The Hannibal Oil Company

Supreme Court of Missouri, Second Division

June 4, 1895

Appeal from Hannibal Court of Common Pleas. -- Hon. Reuben F. Roy, Judge.

Affirmed.

Thomas H. Bacon for appellant.

(1) To say that if plaintiff did not complain he was guilty of contributory negligence, and if he did complain he must have known and therefore assumed the risk, is to put the plaintiff through an ordeal but no trial. It is good provincial logic but nowise tolerable fallacy. Keegan v. Cavanaugh, 62 Mo. 230. (2) There is no specification of any contributory negligence (Harrison v. Missouri, etc., 74 Mo. 364), and the evidence shows unusual care on the plaintiff's part. The hurried propulsion by the foreman leading and directing over the route taken was the agency that loosened the prop. (3) In this case the defendant pleads contributory negligence, which means an averment that by the use of ordinary care the plaintiff could have avoided the injury. The defendant avers that the alleged "injuries resulted from and were occasioned by plaintiff's own negligence and carelessness directly contributing thereto, in the manner and by the means employed by him in rolling or removing said barrel of oil from said warehouse." This is a solemn averment that the plaintiff by exercise of due care could have avoided the injury. In such case there could be no assumption of risk, for if this plaintiff, by the use of due care, could have avoided the injury, an assumption of risk is not imputed. Soeder v. Railroad, 100 Mo. 673; Mahaney v. Railroad, 108 Mo. 191. (4) There was no assumption of risk. In this case the servant did not have an equal knowledge as to the efficiency of the supposed fastening of the prop to the joist. Only the president who did that part could know that. The servant may be inherently and actually required to rely on his own judgment, as where the principal is not present and has no occasion to be present, or where, as in this case, the servant may be inherently or actually entitled to act on the judgment of his participant principal. The servant may act under no specific direction and without remonstrance on servant's part, as in Stoddard v. St. Louis, etc., 65 Mo. 514, and 75 Mo. 651; Aldridge v. Midland, etc., 78 Mo. 559; Devlin v. Railroad, 87 Mo. 570; Thorpe v. Railroad, 89 Mo. 650; Soeder v. Railroad, 100 Mo. 673; Alcorn v. Railroad, 108 Mo. 81; Williams v. Railroad, 109 Mo. 475; Swadley v. Railroad, 118 Mo. 268; Williams v. Railroad, 119 Mo. 316. Or the servant may, under specific directions, act without remonstrance, as in Huhn v. Railroad, 92 Mo. 440; Stephens v. Railroad, 96 Mo. 207; Hamilton v. Mining Co., 108 Mo. 364; Steinhauser v. Spraul, 127 Mo. 541. Or a servant may act under specific direction after a remonstrance is overruled, as in Keegan v. Cavanaugh, 62 Mo. 230; Flynn v. Railroad, 78 Mo. 195. In the case at bar there was a remonstrance sustained as to the maintenance of the structure with a fair assurance and a fair expectation of the abatement of the risk. Conroy v. Iron Works, 62 Mo. 35; Cooley on Torts [Ed. 1879], p. 559, sec. 6. And a remonstrance overruled as to resumption of work prior to permanent adjustment. McGowan v. Co., 61 Mo. 528; Malone v. Morton, 84 Mo. 436. The plaintiff does not sue for the placing of the prop, but for the maintenance of the prop pending specific directions to work in its neighborhood. The remonstrance is notice that the risk is not assumed. A fairly inferred stipulation to readjust, or specific unqualified direction, is acceptance of such non-assumption. These elements are absent in Fugler v. Bothe, 117 Mo. 475, and in Steinhauser v. Spraul, 127 Mo. 541. Plaintiff's involuntary agency in partially aiding in the erection of this structure can not debar him...

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