Lucey v. Hannibal Oil Co.

• Decision Date: 04 June 1895
• Citation: 31 S.W. 340,129 Mo. 32
• Parties: LUCEY v. HANNIBAL OIL CO.
• Court: Missouri Supreme Court

31 S.W. 340

129 Mo. 32

LUCEY v. HANNIBAL OIL CO.

Supreme Court of Missouri, Division No. 2.

June 4, 1895.

CONTRIBUTORY NEGLIGENCE OF EMPLOYE.

An employé who, after assisting his employer to prop up a falling beam in a place of work in what is known by him to be an insecure manner, remains at work in the same place, assumes the risk of injury from this defect.

Appeal from Hannibal court of common pleas; Reuben F. Roy, Judge.

Action by Cornelius D. Lucey against the Hannibal Oil Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Thos. H. Bacon, for appellant. Geo. A. Mahan and F. L. Schofield, for respondent.

BURGESS, J.

This is an action by plaintiff to recover damages for personal injuries sustained by him while a laborer in the service of defendant. The action is predicated on the negligence of defendant in propping up a lateral crossbeam in the building where he was required to work in the discharge of his duties, in consequence of which the crossbeam fell, and struck him on the head and arm, and injured him. The defense was assumption of the risk and contributory negligence on the part of plaintiff. At the conclusion of the testimony introduced by plaintiff, defendant interposed a demurrer thereto, which was sustained by the court, and final judgment rendered for defendant, from which plaintiff appealed.

Defendant is engaged in buying and selling coal oil, and at the time of the injury and prior thereto stored its barreled oil in a wooden warehouse, where plaintiff was hurt. At the time of the accident he was about 51 years of age, and had been in defendant's service about 5 months. On the 18th day of January, 1893, while plaintiff and another employé, engaged in the same service, were taking and removing barrels of o'l from said warehouse, they discovered that three of the joists or crossbeams were pulling away from the north wall of the building, and were about to fall. Defendant's president, Chester Carter's, attention was then called to the condition of the crossbeams, when he ordered plaintiff and another employé (Nau) to prop them up. The props were then obtained, and with the assistance and superintendence of Carter plaintiff and Nau placed them under the crossbeams, one end being placed against the beams, and the other on the ground. The props were not properly adjusted. They were not set straight, which was patent, and plaintiff well knew that their condition rendered the beams unsecure and dangerous. He so stated in his evidence before the jury. With respect to the unsafe condition of the beams he testified as follows: "Q. After you got it done, why did you tell Bert Carter it was not fixed right; that it was dangerous? A. Bert Carter came there, and he said to his father, `You are here again.' He never made him any answer. Then I said, `Bert Carter, if this is left this way, it will kill somebody. He is not doing it right. The props ought to be put straight.' Q. Why did you think it would kill somebody? A. I did not think he had fixed it right. Q. What was the reason you thought it would kill somebody? Did you think it would fall? A. I did not know. I did not think it would be myself. Q. You thought it would kill somebody? A. I did not know whether it would or not. I told Bert Carter, if it was left so, it would kill somebody. Q. That is, the way you left it? A. Yes, sir. Q. How did you think it would kill somebody? A. I said, if it was left that way, it would kill somebody. Q. Why? A. I saw Mr. Carter was not propping it right. Q. In what respect? A. Because he was not putting the props straight under. Q. At the time you said to Bert Carter it would fall and kill somebody, you knew the condition of it then? A. No, sir, I didn't know. Q. What did you say that for? A. ...