Connolly v. St. Joseph Press Printing Company

Decision Date13 January 1902
Citation66 S.W. 268,166 Mo. 447
PartiesCONNOLLY v. ST. JOSEPH PRESS PRINTING COMPANY, Appellant
CourtMissouri Supreme Court

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Brown & Dolman for appellant.

(1) While the rule is that it is the duty of the master to use ordinary care to furnish a reasonably safe place to work, and reasonably safe appliances with which to work, and that the servant may assume that this duty on the part of the master has been performed, it is qualified by the equally well-settled rule that the servant may not, as against his master, assume as true what he knows to be untrue, or what the ordinary care which he has contracted to exercise would demonstrate to be untrue. Bailey's Master's Liability, pp. 180, 181; Epperson v. Postal Tel. Cable Co., 155 Mo. 375. This latter rule necessarily results from the self-evident proposition that it is as much the duty of the servant to take care of himself as of the master to take care of him. Warmell v. Railroad, 79 Me. 405; Foley v. Light Company (N. J.), 24 A. 487; Epperson v. Postal Tel. Cable Co., supra; Rush, Adm'x, v Railroad, 36 Kan. 129; Darracatt v. Railroad, 31 Am. and Eng. Railroad cases, 157. The servant and master having equal opportunity to ascertain and judge, if the failure of the master to ascertain a defect which makes an appliance dangerous constitutes negligence on his part, as does the same failure on the part of the servant constitute negligence in him; and if, having discovered it, it be negligence on the part of the master to permit the servant to use it, it would be negligence on the part of the servant having discovered the defect, to use it himself. This is only applying the rule of equal justice. Rush, Adm'x, v Railroad, supra; Brown v. Railroad, 59 Kan. 70. Out of these simple principles has grown the rule already referred to, that when a person enters into a dangerous employment, he not only assumes the risks ordinarily incident thereto, but also the risk he may incur from manifest perils. 1 Bailey's Pers. Inj. Relating to Master and Servant sec. 507. And no court has had more frequent occasion to state this rule than the Supreme Court of Missouri. Lucey v. Oil Co., 129 Mo. 40; Burnes v. Railroad, 129 Mo. 51; Fugler v. Bothe, 117 Mo. 475; Aldridge v. Furnace Co., 78 Mo. 559; Dewitt v. Railroad, 50 Mo. 302; Spira v. Coal & Mining Co., 68 Mo. 68; Bohn v. Railroad, 106 Mo. 429; Epperson v. Postal Tel. Cable Co., supra; Steinhauser v. Spraul, 127 Mo. 541; Price v. Railroad, 77 Mo. 508; Thomas v. Railroad, 109 Mo. 199; Porter v. Railroad, 71 Mo. 77. The same rule seems to have been universally applied by the courts of other States. Knisley v. Pratt, 148 N.Y. 372; Williams v. Railroad, 116 N.Y. 628; Shaw, Adm'x, v. Sheldon, 103 N.Y. 669; Powers v. Railroad, 98 N.Y. 274; O'Maley v. Gas Light Co., 158 Mass. 135; Goodridge v. Washington Mills Co., 160 Mass. 289; Cunningham v. Paper Co., 163 Mass. 89; Smith v. Beaudray, 175 Mass. 289; Umback v. Railroad, 83 Ind. 194; Railroad v. Henderson, 142 Ind. 596; Gaffney v. Inman Mfg. Co., 18 R. I. 781; Gaffney v. Railroad, 15 R. I. 456; Buzzell v. Laconia Mfg. Co., 48 Me. 113; Wormall v. Railroad, 79 Me. 397; Albrecht v. Railroad, 108 Wis. 530; Howe v. Medaris, 183 Ill. 288; Railroad v. Wilson, 189 Ill. 89; Railroad v. Jackson, 85 Va. 489; Secard v. Railroad (Mich.), 65 N.W. 550; Johnson v. Railroad, 51 Ga. 133; Railroad v. Bishop, 50 Ga. 465; Railroad v. Mara (Ark.), 16 S.W. 196; Norton v. Railroad (Ky.), 30 S.W. 599; Jackson v. Railroad, 31 Kan. 761; Patnodi v. Harter, 20 Nev. 303; Rogers v. Railroad, 76 Tex. 502; Brassman v. Railroad, 113 Pa. St. 490; Wells v. Railroad, 56 Iowa 560; Heath v. Whitebreast, C. & M. Co., 68 Iowa 737; Weeks v. Fremont Mill Co., 3 Wash. 629. (2) Were there no such rule as that relating to the assumption of obvious risks, the negligence of the plaintiff contributing to his injury would, as a matter of law, preclude a recovery.

Thos. F. Ryan and J. W. Boyd for respondent.

(1) Appellant concedes that the machine on which plaintiff was injured, was defective and dangerous, and that it had knowledge thereof, and that plaintiff was injured by reason of its defective condition, but appellant now attempts to avoid its liability for injuring plaintiff on the ground that the defect in the machine was so apparent and obvious that plaintiff assumed the risk, and, therefore, ought not to recover for the injury he received. The determination of this question resolves itself into the inquiry as to what knowledge plaintiff had as to the defective condition of the machine after he called the foreman's attention to its defect and was assured that the same was repaired and was safe. Any prior knowledge plaintiff may have had as to the condition of the machine is only material so far as the jury considered it in determining the question as to what knowledge he had at the time he was injured. Plaintiff had the right to rely on the assurance of the foreman that it was repaired and was safe. Bailey on Personal Injuries Relating to Master and Servant, sec. 898, p. 307; Sullivan v. Railroad, 107 Mo. 78; Herdler v. Stove Co., 136 Mo. 17; Conroy v. Iron Co., 62 Mo. 39; Duerst v. St. Louis Stamp. Co., 63 S.W. 830; Shortel v. St. Joseph, 104 Mo. 114; Bell & Coggeshall v. Applegate, 62 S.W. 1124; McGown v. Railroad, 61 Mo. 532. (2) Whether the plaintiff had assumed the risk or was guilty of contributory negligence, was a matter of affirmative defense, and it was necessary for the defendant to plead and prove the same. 5 Ency. of Pleading and Prac., p. 1; Fisher v. Central Lead Co., 156 Mo. 485; Doyle v. Trust Co., 140 Mo. 19; Settle v. Railroad, 127 Mo. 344; Williams v. Railroad, 109 Mo. 486; Young v. Iron Co., 103 Mo. 324; Thorpe v. Railroad, 89 Mo. 664; Scott v. Springfield, 81 Mo.App. 312; Thompson v. Railroad, 86 Mo.App. 141. (3) The question whether the plaintiff assumed the risk or was guilty of contributory negligence under the facts in this case was clearly a question for the jury. For the rule in this State is that it is only where danger from the defect is so glaring that it is apparent that with the utmost skill the danger is still imminent, and that it is so dangerous that none but a reckless man would incur it, that the court can declare as a matter of law that plaintiff has assumed the risk and can not recover. If, upon all the evidence, there is substantial doubt, the question is one of fact for the jury, and a forced nonsuit or demurrer to the evidence is not permissible. Paulk v. Provision Co., 159 Mo. 475; Stulzor v. Packing Co., 84 Mo. 565; Harriman v. Star Co., 81 Mo.App. 129; Conroy v. Iron Co., 62 Mo. 39; Thompson v. Railroad, 86 Mo.App. 149; Wharton on Neg., sec. 425; Huth v. Doble, 76 Mo.App. 675; Woods' Railroad Law, p. 14-160; Woods' Master and Servant, 761; Snow v. Railroad, 8 Allen 450; Thorpe v. Railroad, 89 Mo. 663; Eckhorn v. Railroad, 130 Mo. 575; Dowell v. Railroad, 115 Mo. 205; Gratiot v. Railroad, 116 Mo. 466; Huhn v. Railroad, 92 Mo. 447; Lynch v. Railroad, 112 Mo. 440; Stube v. Iron Co., 85 Mo.App. 650; Scott v. Springfield, 81 Mo.App. 312; Bradley v. Railroad, 138 Mo. 306. (4) And the question in this case is not, did the defendant know of the defect in the machine, but did he also know and appreciate the danger in using the machine, for though the plaintiff may have known of the defective condition of the machine, yet unless the defect was so glaring that a reasonable and prudent person would believe that the same could not be used with the utmost care and skill without injury, then the mere knowledge of the defect would not defeat plaintiff's right of recovery. And this has been the rule of law in this class of cases as announced by this court, and the Court of Appeals ever since, as shown by numerous cases -- a few of which we cite: Huhan v. Railroad, 92 Mo. 440; Doyle v. Trust Co., 140 Mo. 1; Bradley v. Railroad, 138 Mo. 293; Scott v. Springfield, 81 Mo.App. 312; Duerst v. St. Louis Stamp. Co., supra; Francis v. Railroad, 127 Mo. 658; Thompson v. Railroad, 86 Mo.App. 141. (5) Before a verdict can be set aside by the appellate court, it should appear that there is no evidence to support it, that it is the result of passion, prejudice or misconduct of the jury. Mere insufficiency of the evidence in the opinion of the appellate court, is not sufficient. James v. Mutual Life Assn, 148 Mo. 16; Huth v. Doble, 76 Mo.App. 671; Lower v. Pauley, 76 Mo.App. 287.

OPINION

BRACE, P. J.

This is an appeal by the defendant from a judgment of the Buchanan Circuit Court in favor of the plaintiff for the sum of $ 5,000, in an action for personal injuries.

The only errors assigned for reversal are the refusal of the court to sustain a demurrer to the evidence, and to give two instructions asked for by the defendant. The court gave seven instructions for the defendant, presenting its side of the case very favorably, and it is only necessary to say in regard to these refused instructions that they contained nothing to which the defendant was entitled that was not included in the instructions given. The only real question in the case is whether the court erred in submitting the case to the jury.

The cause of action stated in the petition is, in substance: That the defendant owned and operated a printing plant, in which the plaintiff was one of its employees. That among other instruments and machinery used and operated in its business was a machine known as a "shaver" with a knife attached to a spindle for trimming and shaving stereotype plates, which had a certain lever and spring, and brake or shoe and grooves and fasteners or clutches that acted upon a belt and pulley and other appliances of said machine which, when in proper...

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