Holloran v. Union Iron & Foundry Co.

• Decision Date: 17 March 1896
• Parties: Holloran, Appellant, v. Union Iron & Foundry Company
• Court: Missouri Supreme Court

35 S.W. 260

133 Mo. 470

Holloran, Appellant, v. Union Iron & Foundry Company

Supreme Court of Missouri, Second Division

March 17, 1896

Appeal from the St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

L Frank Ottofy and John P. Leahy for appellant.

(1) To warrant the giving of a demurrer to the evidence it must be clear that a man of common prudence, in a like situation would not have undertaken the work and that no other conclusion is fairly deducible from the evidence, giving the plaintiff the benefit of every favorable inference that may be reasonably drawn from it. Schroeder v. Railroad, 108 Mo. 322-333, and cases cited; Millinery Co. v. Railroad, 59 Mo.App. 668. (2) "Where the servant incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury, or, where it is reasonable to suppose or believe that it may be safely used by great caution or skill, the master is liable." Conroy v. Iron Works, 62 Mo. 35; Stoddard v. Railroad, 65 Mo. 514; Devlin v. Railroad, 87 Mo. 545; Thorpe v. Railroad, 89 Mo. 650; Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100 Mo. 673; Hamilton v. Mining Co., 108 Mo. 364; Swadley v. Railroad, 118 Mo. 268; McMullen v. Railroad, 60 Mo.App. 27. (3) "It is only where the defect is so glaring that with the utmost care and skill the danger is still imminent, so that none but a reckless man would incur it, the servant assumes the risk." Conroy v. Iron Works, 62 Mo. 35; Stephens v. Railroad, 96 Mo. 207; Schroeder v. Railroad, 108 Mo. 322; Monahan v. Co., 58 Mo.App. 68. When there is substantial doubt on this question, it is one for the jury and a nonsuit or demurrer to the evidence is not permissible. Thorpe v. Railroad, 89 Mo. 650; Hamilton v. Mining Co., 108 Mo. 364; Schroeder v. Railroad, 108 Mo. 322. (4) "He is required to take and will be held responsible for the care incident to the situation in which he is placed, and whether he exercised that degree of caution is a fact for the determination of the jury." Conroy v. Iron Works, 62 Mo. 35; Stephens v. Railroad, 96 Mo. 207; O'Mellia v. Railroad, 115 Mo. 205; Halliburton v. Railroad, 58 Mo.App. 27. (5) Knowledge of the defect is not sufficient to defeat his recovery, but whether with such knowledge his action was so reckless as to constitute contributory negligence is a question for the jury. Conroy v. Iron Works, 6 Mo.App. 102; Thorpe v. Railroad, 89 Mo. 650; Huhn v. Railroad, 92 Mo. 440. (6) "And where the master has promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance, and for any injury suffered in any period which would not preclude all reasonable expectations that the promise might be kept." Conroy v. Iron Works, 62 Mo. 35; S. C., 6 Mo.App. 102; Flynn v. Railroad, 78 Mo. 195; Stephens v. Railroad, 96 Mo. 207. (7) Assumption of risk is matter of defense; in the case at bar contributory negligence alone is pleaded. The former is not in this case. Alcorn v. Railroad, 108 Mo. 81; McMullen v. Railroad, 60 Mo.App. 231.

Pollard & Werner for respondent.

(1) This case should be disposed of by the application of the maxim, volenti non fit injuria. Devitt v. Railroad, 50 Mo. 302. (2) A promise to repair or provide other appliances will not avail where it appears that the servant does not rely upon it. Gowen v. Harley, 56 F. 973-982. (3) The promise or assurance must come from the master, or from some one having authority to speak for him in the matter. McGowan v. Railroad, 61 Mo. 528; Marshall v. Schricker, 63 Mo. 308.

Gantt, P. J. Burgess, J., concurs. Sherwood, J., also concurs but may hereafter express some additional views in a separate opinion.

OPINION

Gantt, P. J.

This is an action for personal injuries sustained by the plaintiff in falling from the first floor of the DeMenil building in St. Louis into the cellar thereof during its construction.

Plaintiff was a laborer for the Union Iron & Foundry Company which had the contract for the iron work in said building and had been employed for two years by said company in the general work of receiving, moving, and putting up iron work in buildings in the course of construction. On the day he received his injuries, plaintiff was engaged, in conjunction with several other laborers, in moving an upright derrick on loose planks laid for that purpose across the uncovered iron girders of the first floor of said DeMenil building. The first story had no floor as yet, the iron columns and cross beams only having been put in place and fastened. The derrick was provided with small wheels or rollers.

On this occasion a run or track was laid consisting of planks laid side by side and extended end to end across the girders, on which the derrick was to be moved. The derrick was pushed along on these planks by plaintiff, and was pulled and guided by Droney, the foreman of the gang, on the front, or the end in the direction they were moving it. This work had proceeded safely up to a certain point when it was observed by the foreman, who was engaged with the other men in this work, that the derrick was running to one side, and he thereupon called to plaintiff, who was standing on a plank immediately behind the derrick, prying it from behind by means of a crowbar, to "cut it in." This he attempted to do by stepping to one side, allowing one foot to rest on the plank on which he had been standing, and bracing the other against one of the iron girders running alongside the plank, and inserting his crowbar under the derrick from the side. Whilst in this position his foot, braced against the girder, slipped, and he fell into the cellar below, receiving the injuries complained of.

Testimony was introduced to the effect that plaintiff and the other men engaged with him had complained sometime before this to the foreman that they were not provided with enough planks for this work. No two agree as to just what was said to, or by, the foreman. The only witnesses introduced (aside from the physician) were plaintiff, Lehman, a fellow laborer, and Droney, the foreman of the gang. As to these complaints the testimony of these witnesses is as follows, viz.:

Plaintiff testified: "Before moving the derrick in the morning I told Droney I couldn't do with these four planks; he said, go ahead, he would get more right away; told him I would sooner quit than work on such a job; he said he would get more right away, and to go on."

Lehman testified: "Holloran said to Droney, 'We ought to have more planks there;' heard Droney say, 'We can't get any more, we have to get along with them;' heard no conversation next morning; I also objected; that is all I heard objected. Droney said: We have got all he could get and must get along with them. Said nothing about getting more; sent me out to get in some columns. Came back; told him it was getting dangerous here. I says: 'We ain't got no more planks loose now.' He says: 'Well, I can't help it, we have got to try to get along with it.'" On cross-examination he says that he "meant that I needed more plank to roll in columns."

Droney, the foreman, testified: "Don't know whether Holloran said anything in particular about there not being sufficient planks; the whole gang of them said we ought to have more; I told them we would try to get some more, but we would try to get along with that, for it was all we had; didn't try to get more that day." On cross-examination he says: "Holloran was present. I said, you take your party and roll in some of those columns; I was working at stake with another man at the end; they came over and said, we haven't got enough of plank; I said, we will get along to-day; they, the whole crowd, said they ought to have more plank to run in the columns on. They were not moving derrick at that time; that was about an hour after. The planks asked for were for rolling in columns and the eight boards were intended for derrick."

As to the relation of the witness Droney to the plaintiff and the other men engaged with him in the work at hand, the testimony introduced shows simply that he acted for the defendant as a foreman in directing these men what to do and when to do it. He engaged in the work with them. It nowhere appears that he had any power to provide materials or appliances of any kind, or any right to employ or discharge men.

Upon the foregoing facts the circuit court sustained a demurrer to the evidence and plaintiff appeals. The question for determination upon this record is whether upon the evidence as it stood the circuit court correctly ruled that the case should be withdrawn from the jury by a peremptory instruction that the plaintiff was not entitled to recover.

The general rule is well settled, and is evidenced by many decisions, not only of this court but of the courts of last resort in England and of the various states of the Union, that if one who is fully capable of selecting and contracting for himself voluntarily enters into an employment with full notice of the risks thereof, he is held to assume the risks of injury ordinarily incident to such employment.

This general rule does not obtain where the risk is known to the master or by the exercise of ordinary care should be known to him and is not known by the servant, and it has been often ruled in this state that this general rule is not applicable if the servant incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury or when it is reasonable to suppose that it may be safely used with great care or skill. Mere knowledge on his part will not defeat his recovery, if injured under the circumstances last mentioned. Conroy v. Vulcan Iron Works, ...