65 S.W. 737 (Mo. 1901), Wendler v. People's House Furnishing Company

Citation:65 S.W. 737, 165 Mo. 527
Opinion Judge:VALLIANT, J.
Attorney:O'Neill Ryan and Given Campbell for appellant. A. R. Taylor for respondent.
Judge Panel:VALLIANT, J. Burgess, C. J., Brace, Gantt and Valliant, JJ., concurring therein; Sherwood, Robinson and Marshall, JJ., dissent.
Case Date:December 03, 1901
Court:Supreme Court of Missouri

Page 737

65 S.W. 737 (Mo. 1901)

165 Mo. 527




Supreme Court of Missouri, First Division

December 3, 1901

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


O'Neill Ryan and Given Campbell for appellant.

(1) The court should have sustained the demurrer to the evidence as, under the pleadings and evidence, the plaintiff was not entitled to recover for the reasons: First. Because the plaintiff had been working at that place and using that elevator for eighteen months prior to the accident; the conditions were the same when he entered the defendant's employ as when he was hurt, and had been the same during the intervening time; he was a man of mature years, the conditions complained of and the risks and dangers incident thereto were obvious, were well known to him, even better than to his master, and, by continuing to work in those conditions without complaint, he assumed the risks incident thereto and can not now complain when they have resulted in injury -- and this even though the court should hold there was a violation by defendant of the ordinance pleaded and that this constituted negligence per se. Price v. Railroad, 77 Mo. 511; Spiva v. Osage C. & M. Co., * 88 Mo. 68; Alcom v. Railroad, 108 Mo. 97; Fugler v. Bothe, 117 Mo. 493; Junior v. M. E. & P. Co., 127 Mo. 83; Lucy v. Hannibal, etc. Co., 129 Mo. 39; Nugent v. Milling Co., 131 Mo. 254; Holloran v. U. I. & F. Co., 133 Mo. 470; Winkler v. St. L. B. & B. Co., 137 Mo. 394; Doyle v. Trust Co., 140 Mo. 18; Epperson v. Postal C. T. Co., 50 S.W. 803; Railroad v. Seley, 152 U.S. 154; Hunt v. Kile, 98 F. 53; Iron Co. v. Weiss, 90 F. 46; The Saratoga, 87 F. 349; Dredging Co. v. Walls, 84 F. 428; Pierce v. Clavin, 82 F. 552; Carpet Co. v. O'Keefe, * 51 U. S. App. 74; Knisley v. Pratt, * 148 N.Y. 372; Marsh v. Chickering, 101 N.Y. 396; Gibson v. Railroad, 63 N.Y. 449; (followed in 88 N.Y. 264, and 111 Ib. 554); Horton v. The Vulcan Iron Works, * 13 A.D. 508; Gruner v. Brewer, 4 App.Div. (N. Y.) 327; Feely v. Pearson Cordage Co., 161 Mass. 426; Goodridge v. Washington Mills Co., 160 Mass. 234; Kleinert v. Kimhardt, 160 Mass. 230; O'Malley v. S. B. G. L. Co., * 158 Mass. 135; Taylor v. Carew Mfg. Co., * 143 Mass. 470; s. c., 140 Mass. 150; Scharenbraich v. St. Cloud F. W. Co., 59 Minn. 121; Jenny Electric L. & P. Co. v. Murphy, 115 Ind. 566; Reynolds v. Hindman, * 32 Iowa 146; Willey v. Mulledy, * 78 N.Y. 315; Disano v. N. E. S. B. Co., 40 A. (R. I.) 7; Boyd v. Harris, 35 A. 222; McDonald's Adm. v. N. & W. R. Co., 27 S. E. (Va.) 821; Bailey on Personal Injuries, etc., secs. 778, 837, 946-8; Bailey on Master's Liability to Servant, p. 180; Beach on Cont. Neg., secs. 370, 371; (Mem: The cases marked with an asterisk are cases of violation of a statute). Second. Because the plaintiff, knowing exactly the conditions as to light existing about the elevator at the time he was hurt, and knowing the gate was up, and that according to the unvarying method of using the elevator, he must look to see if it was at the landing, and, if not, pull it up or down to that floor, nevertheless walked on to the elevator, and, without stopping to see if it was there, or turning on the light that hung before it, walked into the open shaft, and thus by his own carelessness and negligence directly contributed to the happening of the accident, and this forbids his recovery; and as this was the proximate cause, it would make no difference if the court should hold that defendant violated the ordinance pleaded, and that this constituted negligence per se. Lenix v. Railroad, 76 Mo. 91; Powell v. Railroad, 76 Mo. 83; Butts v. Railroad, 98 Mo. 272; Weber v. Railroad, 100 Mo. 200; O'Donnell v. Patton, 117 Mo. 21; Hogan v. Railroad, 150 Mo. 55; Holwerson v. Railroad, 57 S.W. 770; The Saratoga, supra; Claus v. Steamship Co., 89 F. 646; Beach on Cont. Neg., sec. 58. (2) The court erred in admitting the ordinance in evidence for these reasons: First. It could not be made the basis on which to rest a civil liability on the part of defendant to plaintiff. Holwerson v. Railroad, 57 S.W. 770; Murphy v. Railroad, 153 Mo. 252; Sanders v. Railroad, 147 Mo. 426; Byington v. Railroad, 147 Mo. 673; Fath v. Railroad, 105 Mo. 537. Second. The ordinance did not make the violation negligence, on the contrary, it only fixed and limited the punishment for violation at a certain fine, and hence, was only punitive, and not compensatory. Holwerson v. Railroad, supra. Third. The plaintiff failed to show that defendant had been notified by the commissioner of public buildings to erect gates, and until such notice was given, and disregarded for thirty days, there was no obligation to comply with the ordinance, and hence there was no violation thereof by defendant.

A. R. Taylor for respondent.

(1) "It is the duty of the master to keep his premises, necessary in the prosecution of his business, in a reasonably safe condition, and if he fails to do so he is liable to the servant for all injuries resulting to him from such defects, precisely as he would be to a stranger affected with the same knowledge of their condition that the servant has, unless such defect arises or is not repaired in consequence of a co-servant. The master owes the same duty in this respect to the servant that he owes to a stranger lawfully upon the premises, and in either case it is a question of care and diligence on the master's part and a want of proper care and diligence on the part of the person injured." Wood, Master and Servant (2 Ed.), pp. 695, 696, sec. 334; Dayharsh v. Railroad, 103 Mo. 576; Turner v. Haar, 114 Mo. 346; Williams v. Railroad, 119 Mo. 322; Herdler v. Buck, S. & R. Co., 136 Mo. 15. (2) The servant Wendler, upon entering the service of the defendant, assumed the risks and dangers ordinarily incident to the service he engaged to perform. These are risks and dangers which attend the service, when the master performs his duties to his servant. They are such risks and dangers which accompany the work notwithstanding the master performs his duties. But the rule is equally as well settled that the servant does not assume the risk which may arise by reason of the neglect to provide a reasonably safe place and appliances to do the work he engages to perform. The duty of the master as to supplying a reasonably safe place, and reasonably safe appliances "is a continuing duty of the master and a neglect of it is negligence. On entering the employment the servant does not assume the risk of dangers arising from its neglect." Settle v. Railroad, 127 Mo. 343; Railroad v. Spangler, 44 Oh. St. 471; Roesner v. Hermann, 10 Biss. 486; Railroad v. Eubanks, 48 Ark. 460; Hessonger v. Railroad, 191 Ala. 514...

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