62 Mo. 35 (Mo. 1876), Conroy v. The Vulcan Iron Works
|Citation:||62 Mo. 35|
|Opinion Judge:||WAGNER, Judge.|
|Party Name:||JAMES CONROY, Appellant, v. THE VULCAN IRON WORKS, Respondent.|
|Attorney:||J. C. McGinnis, with Finkelnburg & Rassieur, for Appellant. Cline, Jamison & Day, for Respondent.|
|Court:||Supreme Court of Missouri|
Appeal from St. Louis Circuit Court.
The failure of the respondent to comply with the assurance that the defect should be remedied, amounted to gross neglect on the part of respondent, which made it liable for any injury resulting therefrom. The platform was not so obviously and immediately dangerous that a man of common prudence would have refused to use it. Whether such was the fact was however a question which ought to have been submitted to the jury. (Patterson vs. Pittsburgh R. R. Co., 76 Penn. St., 389.)
The plaintiff knew the danger to which he was exposing himself, and continued in the service of the defendant, and therefore cannot recover. ( Devitt vs. Pacific R. R., 50 Mo. 302; Wright vs. N.Y. Central R. R. Co., 25 N.Y. 566; McGlynn vs. Brodie, 31 Cal. 376; Davis vs. Detroit and Milwaukee, 20 Mich. 105; Thayer vs. St. Louis, A. & T. R. R. Co., 22 Ind. 26.)
The court in this case gave an instruction that there was no evidence upon which the plaintiff could recover, whereupon he took a non-suit, and there being a refusal to set the same aside, an appeal was taken to this court.
It was alleged in the petition that the plaintiff was in the employ of the defendant, in and about the coal hoist, and through the defective construction of the hoist he was thrown under a coal car and injured; that the injury resulted to him while he was in the discharge of his duty, and was caused directly by the fault, want of care, and negligence of the defendant in not securely fastening down the boards or timbers placed within the track of the coal cars, upon which plaintiff had to stand in unhitching them.
The evidence submitted by the plaintiff showed that two days previous to the accident he had observed that the timbers were not secure, and had reported to the superintendent that there was danger in leaving them in that situation, and the officer told him that he would make the proper repairs, but he could not do everything at once.
Under the circumstances, we think, the action of the court in refusing to let the case go to the jury, was erroneous. A master is not responsible for injuries happening to his servant from the usual and ordinary risks incident to the employment in which he is engaged: for in all such cases the contract is presumed to be made with reference to such risks. Thus, in Devitt vs. Pacific Railway (50 Mo. 302) the plaintiff's...
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