33 S.W. 428 (Mo. 1895), Nugent v. Kauffman Milling Co.

Citation:33 S.W. 428, 131 Mo. 241
Opinion Judge:Robinson, J.
Party Name:Nugent v. Kauffman Milling Company, Appellant
Attorney:Lee & McKeighan and Jos. S. Laurie for appellant. A. R. Taylor for respondent.
Judge Panel:Robinson, J. Brace, C. J., Macfarlane and Barclay, JJ., concur in the result.
Case Date:November 26, 1895
Court:Supreme Court of Missouri
 
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Page 428

33 S.W. 428 (Mo. 1895)

131 Mo. 241

Nugent

v.

Kauffman Milling Company, Appellant

Supreme Court of Missouri, First Division

November 26, 1895

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Reversed.

Lee & McKeighan and Jos. S. Laurie for appellant.

(1) Defendant's instruction in the nature of a demurrer to the evidence should have been given. "If the risk is perfectly obvious to the sense of any man, whether servant or master, the servant assumes the risk." Keegan v. Kavanaugh, 62 Mo. 230; Aldrich v. Furnace Co., 78 Mo. 559; Renfro v. Railroad, 86 Mo. 302; Jackson v. Railroad, 104 Mo. 448; Alcorn v. Railroad, 108 Mo. 81; Railroad v. Trimble, 35 N.E. 716; Pa. Co. v. Congdon, 134 Ind. 226; Macklin v. Company, 58 N.W. 999; Hickey v. Taaffe, 105 N.Y. 26; Buckley v. Company, 113 N.Y. 540; Crown v. Orr, 140 N.Y. 450; Pratt v. Prouty, 153 Mass. 333; Tinkham v. Sawyer, 153 Mass. 485; Crowley v. Pacific Mills, 148 Mass. 228. The machine itself was not dangerous and therefore no special instructions as to the manner of using it were required. Railroad v. Schroeder, 47 Kan. 315. (2) The instructions given in behalf of plaintiff were erroneous. First. There is no evidence to support them. Second. They omit elements which were essential to plaintiff's right of recovery, e. g., that defendant knew as charged in the petition that plaintiff lacked the necessary skill and experience to perform such service. Railroad v. Fort, 17 Wall. 553; Dowling v. Allen, 102 Mo. 213. (3) The plaintiff's own testimony shows his case is without merit.

A. R. Taylor for respondent.

(1) The evidence clearly showed a case of prima facie liability on part of defendant. (2) The plaintiff, even if a competent and experienced adult, only assumed the perils ordinarily incident to the work he engaged to perform, that is, such perils as are incident to the work after and notwithstanding the master has used ordinary care in providing reasonably safe appliances, and in using such care in commanding the plaintiff as to the work he was to do. Gibson v. Railroad, 46 Mo. 169; Blanton v. Dold, 109 Mo. 75; Henry v. Railroad, 109 Mo. 493. (3) The question, whether or not the order given by Porter to plaintiff to use the little tin scoop without a handle, and his hand to shove off the sweepings onto the crush rollers, was one of ordinary care, depends upon all the surrounding facts, the condition of the spout, the danger of substances coming through and displacing the scoop under the hand, the necessary proximity of the hand to the rollers, while obeying the order, and also the experience and ability of the plaintiff to appreciate and guard against peril, as known to Porter. (4) The evidence showed that Porter, at the time that he gave the order which caused the loss of plaintiff's hands, knew, and said in substance, that the plaintiff was ignorant of the manner in which to do the work. In such case, where a servant, in obeying an improvident order is injured, the master is liable. Dowling v. Allen, 102 Mo. 220. (5) Although the plaintiff knew that there was some risk attending the feeding of the sweepings onto the crush rollers, yet if such risk was not such as to threaten immediate injury, or such that a person of ordinary prudence would not have undertaken to obey the order of Porter, such knowledge of the plaintiff, as a matter of law, does not defeat this action, and the jury's verdict is conclusive upon the point. Huhn v. Railroad, 92 Mo. 447; Shortel v. Railroad, 104 Mo. 120; Hamilton v. Rich Hill Co., 108 Mo. 375; O'Mellia v. Railroad, 115 Mo. 191; Francis v. Railroad, 28 S.W. 845. (6) Where the master, through his agent, gives to the servant a negligent or improvident order, and the servant, while obeying such order, and exercising ordinary care in doing so, is injured, the master is liable. Stephens v. Railroad, 86 Mo. 230; Hoke v. Railroad, 88 Mo. 371; Dayharsh v. Railroad, 103 Mo. 576; York v. Railroad, 117 Mo. 411. (7) Instruction number 1, given for plaintiff, was correct. It required the jury to find every fact essential to a recovery.

Robinson, J. Brace, C. J., Macfarlane and Barclay, JJ., concur in the result.

OPINION

[131 Mo. 244] Robinson, J.

This is an action for damages resulting from personal injuries received by plaintiff while working as an assistant in defendant's flouring mills in the city of St. Louis.

The petition grounds plaintiff's cause of action upon the facts that he was negligently commanded by one Porter, the agent of defendant, and at that time in control of defendant's mill, to feed the sweepings of defendant's mill into a certain roller or crushing machine therein; that the work was extra hazardous to the work for which plaintiff was employed, and that defendant's agent and managers well knew the work was dangerous when he ordered plaintiff to perform the same; that plaintiff was without skill or experience in doing such work, and that he was not cautioned as to its danger; that at the time of such order the roller machine was in a defective condition and unfit and dangerous for the use to which defendant was applying it, and that the feed roller and appliances to regulate the feed from the hopper of the machine into the crushing rollers were at the time, and had for a long time prior thereto been, out of repair and would not work, as defendant well knew, and that such defective condition of said machinery directly contributed to plaintiff's injury; that in obeying the order of defendant's manager plaintiff's left hand was caught between the crushing rollers and in seeking to save it, his right hand was also drawn into the machine and both hands crushed and greatly injured.

Defendant filed by way of answer a general denial coupled with a plea of contributory negligence on part of plaintiff.

During the trial of the case and at the closing of plaintiff's testimony defendant asked an instruction in the nature of a demurrer to the evidence, which proving [131 Mo. 245] ineffectual was again renewed at the close of defendant's testimony and again overruled.

The jury receiving instruction from the court, found a verdict for plaintiff for $ 4,000 on which, in due course, a judgment was entered, to reverse which this appeal is prosecuted.

Several assignments of error to the action of the court in giving of instructions is made by defendant, but from the view we take of the testimony a discussion of the instructions will be unnecessary.

The question presented is whether under any view of the evidence the injury can be attributed to any fault on the part of the mill company. What occasion was there for plaintiff coming in contact with the rollers? In what respect has defendant been guilty of a breach of duty to this plaintiff; or, if due in part to...

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