63 S.W. 827 (Mo. 1901), Duerst v. St. Louis Stamping Company

Citation:63 S.W. 827, 163 Mo. 607
Opinion Judge:VALLIANT, J.
Attorney:Wm. F. Broadhead and F. C. Sharp for appellant. Wm. F. Woerner and F. and Ed. L. Gottschalk for respondent.
Judge Panel:VALLIANT, J. Brace, P. J., and Marshall, J., concur; Robinson, J., is of the opinion that the judgment should be reversed without remanding.
Case Date:June 12, 1901
Court:Supreme Court of Missouri

Page 827

63 S.W. 827 (Mo. 1901)

163 Mo. 607




Supreme Court of Missouri, First Division

June 12, 1901

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

Reversed and remanded.

Wm. F. Broadhead and F. C. Sharp for appellant.

(1) The petition on which this suit is founded does not state facts sufficient to constitute a cause of action. It is not a defective statement of a good cause of action, which would be cured by a judgment, but is fatally defective. There is no allegation of negligence on the part of defendant. It is not alleged that the defendant furnished a tool dangerous to plaintiff for the kind of business in which he was engaged; nor that defendant furnished a dangerous or unsafe hammer at all; nor that the chipping of the hammer was because it was so defective as to not be a reasonably safe tool for the purpose for which plaintiff was using it; nor that the defect was latent, nor that the plaintiff was not aware of the defect and could not have known of it by the exercise of ordinary care. All the facts which constitute a cause of action must be stated. Scott v. Robards, 67 Mo. 289; Pier v. Heinrichoffen, 52 Mo. 333; Christian v. Ins. Co., 143 Mo. 460; Bredell v. Alexander, 8 Mo.App. 110; Weil v. County, 69 Mo. 281; Cooke v. Putnam County, 70 Mo. 668; Clark v. Whittaker Iron Co., 9 Mo.App. 646; Peck v. Bridwell, 6 Mo.App. 451; Staley v. Wallace, 21 Mo.App. 128; Weler v. Life Ins. Co., 5 Mo.App. 51; Story v. Ins. Co., 61 Mo.App. 534; Freemark v. McKinney, 55 Mo.App. 435. By pleading to the merits a defendant waives everything in the petition except that it does not state facts sufficient to constitute a cause of action, and the court's jurisdiction. Paddock v. Somes, 102 Mo. 226; Seckinger v. Philibert, 129 Mo. 590; Poe v. Domic, 48 Mo. 441; Hall v. Johnson, 57 Mo. 521; Sappington v. Railroad, 14 Mo.App. 86. (2) If on the plaintiff's evidence, in an action to recover damages for injuries alleged to have been sustained through the negligence of defendant, it clearly appears that plaintiff was himself guilty of carelessness and negligence which contributed directly to the injury he complains of, he can not recover, and the court should so instruct the jury. This the court refused to do. Epperson v. Cable Co., 155 Mo. 346; Bradley v. Railroad, 138 Mo. 293; Hogan v. Railroad, 150 Mo. 36; Nolan v. Shickle, 69 Mo. 340; Fletcher v. Railroad, 64 Mo. 488; Schoab v. Wheel Co., 56 Mo. 176; Morrissey v. Ferry Co., 43 Mo. 383. (3) If the servant, before he enters the service, knows, or if he afterwards discovers, or if by the exercise of ordinary observation or reasonable skill and diligence in his department of service, he may discover that the building, premises, machine, appliance, or fellow servant in connection with which or with whom he is to labor, is unsafe or unfit in any particular, and if, notwithstanding such knowledge, or means of knowledge, he voluntarily enters into or continues in the employment, without objection or complaint, he is deemed to have assumed the risk of the danger thus known or discoverable, and to waive any claim for damage against the master in case it shall result in injury to him. 2 Thompson on Negligence, sec. 1008; Thomas v. Railroad, 109 Mo. 187; Price v. Railroad, 77 Mo. 508; Hulett v. Railroad, 67 Mo. 239. (4) The servant, when he enters his master's employ, assumes not only the risks incident to his employment, but all dangers which are apparent and obvious as a result thereof. The work plaintiff was required to do was not extra hazardous, but was the work he was employed to do. He was not ignorant of the danger of doing this work, but says he knew his danger. The danger of using a hammer that was chipping he knew; he was employed to make his work profitable to the master; he could see and study the hammer, and was bound to know that the same force that would make other hammers chip and cause the bleeding of hands and faces of other workmen from such chips, would, if applied to his eye, cause its destruction, and in addition to all this he negligently continued to use the hammer, knowing its defective condition, although he had a half dozen other hammers on the table at the time. Steinhouser v. Spraul, 127 Mo. 541; Lucey v. Oil Co., 129 Mo. 32; Halloran v. Foundry Co., 133 Mo. 470; Fugler v. Bothe, 117 Mo. 475; Bradley v. Railroad, 138 Mo. 293; Winkler v. Basket Co., 137 Mo. 394; Nugent v. Milling Company, 131 Mo. 241. (5) The plaintiff did not rely on any assurance of the master. In fact, he was fully informed of the peril and chose to continue his work. No principle is better established than that under such circumstances the risk is assumed, and he does not rely on the assurance of the master. Epperson v. Cable Co., 155 Mo. 378; Fulger v. Bothe, 117 Mo. 500; Junior v. Power Co., 127 Mo. 82.

Wm. F. Woerner and F. and Ed. L. Gottschalk for respondent.

(1) The court properly refused to nonsuit plaintiff on the merits. (a) The general rule is, that where the facts with respect to the negligence of the parties are such that reasonable minds might differ with respect thereto, the case should go to the jury. The issue as to contributory negligence must always be submitted to the jury, unless the only rational inference to be drawn from the undisputed facts excludes the idea that such care was observed by plaintiff as a person of ordinary prudence would have exercised under the particular facts of the case. Threlkeld v. Railroad, 68 Mo.App. 131; Doyle v. Trust Co., 140 Mo. 15; Huhn v. Railroad, 92 Mo. 450; Bender v. Railroad, 137 Mo. 245; Hamman v. Cent. C. & C. Co., 156 Mo. 232. The trial court will, on the application to nonsuit the plaintiff, indulge in his favor every inference of fact which the jury may draw. Lee v. Knapp, 137 Mo. 385; Alcorn v. Railroad, 108 Mo. 81. (b) The defect was not an obvious one to plaintiff; the jury so found on defendant's instruction, telling them no recovery could be had if it was obvious. But even if it had been, there are numerous cases in this State that hold that mere knowledge of a defect in the appliance with which the servant is working will not, as a matter of law, bar a recovery, unless such instrumentality is so glaringly imperfect as to threaten immediate injury -- so defective that a man of ordinary prudence would see that it could not be used with great care and skill. Warner v. Railroad, 62 Mo.App. 184; Huhn v. Railroad, 92 Mo. 440; Helfenstein v. Medart, 136 Mo. 595; Bender v. Railroad, 137 Mo. 240; Steinhauser v. Spraul, 114 Mo. 551. (c) The plaintiff had a right to rely on the foreman's assurance that the hammer "was all right" and in good condition, when plaintiff specially asked him about it. Even when the condition of the instrument, machinery or place is such as to threaten injury, and the servant observes it, yet if the master assures the servant that there is no immediate danger, and orders him to proceed, it will then be left to the jury, or trier of facts, to determine if the servant was negligent in heeding such assurance and obeying orders. Plaintiff had a right to rely on the superior judgment of the master mechanic. The duty of inspection and repair rested on the latter; obedience, on the former. Hence, it is said that the master and servant are not on equal terms in this regard. Halliburton v. Railroad, 58 Mo.App. 27; Stephens v. Railroad, 96 Mo. 207; Herdler v. Buck Stove Co., 136 Mo. 17; Sullivan v. Railroad, 107 Mo. 78; Doyle v....

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