35 S.W. 260 (Mo. 1896), Holloran v. Union Iron & Foundry Co.

Citation:35 S.W. 260, 133 Mo. 470
Opinion Judge:Gantt, P. J.
Party Name:Holloran, Appellant, v. Union Iron & Foundry Company
Attorney:L. Frank Ottofy and John P. Leahy for appellant. Pollard & Werner for respondent.
Judge Panel:Gantt, P. J. Burgess, J., concurs. Sherwood, J., also concurs but may hereafter express some additional views in a separate opinion.
Case Date:March 17, 1896
Court:Supreme Court of Missouri

Page 260

35 S.W. 260 (Mo. 1896)

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

[133 Mo. 473] 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...

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