88 S.W. 103 (Mo. 1905), Blundell v. Wm. A. Miller Elevator Manufacturing Company

Citation:88 S.W. 103, 189 Mo. 552
Opinion Judge:MARSHALL, J.
Party Name:BLUNDELL, Appellant, v. WM. A. MILLER ELEVATOR MANUFACTURING COMPANY
Attorney:Wm. H. Clopton for appellant. Thos. G. Rutledge and Seddon & Holland for respondent.
Case Date:June 15, 1905
Court:Supreme Court of Missouri
 
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Page 103

88 S.W. 103 (Mo. 1905)

189 Mo. 552

BLUNDELL, Appellant,

v.

WM. A. MILLER ELEVATOR MANUFACTURING COMPANY

Supreme Court of Missouri, First Division

June 15, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood, Judge.

Affirmed.

Wm. H. Clopton for appellant.

(1) The employer is charged with the duty of not subjecting his servants to risks by his own negligence. And a servant cannot assume to bear the consequences of the master's negligence. The employer is required to use ordinary care in providing secure instrumentalities which the servant is required to employ in his work. Curtis v. McNair, 173 Mo. 280; Wendler v. Peoples' H.F. Co., 165 Mo. 527; Settle v. Railroad, 127 Mo. 343; Pauck v. Dressed Beef Co., 159 Mo. 467; Blanton v. Dold, 109 Mo. 76; Gibson v. Railroad, 46 Mo. 163; Huhn v. Railroad, 92 Mo. 447; Soeder v. Railroad, 100 Mo. 681; Williams v. Railroad, 119 Mo. 316; Rodney v. Railroad, 127 Mo. 676; Hudler v. Buck S.R. Co., 136 Mo. 3. (2) The danger of using the ladder without the assistance of a helper was not so patent and obvious to appellant as to relieve respondent from liability. Conroy v. Iron Works, 62 Mo. 39; Stoddard v. Railroad, 65 Mo. 520; Huhn v. Railroad, 92 Mo. 440. (3) Respondent directed appellant to proceed with the work without a helper -- promising to furnish one at noon. Stoddard v. Railroad, 65 Mo. 514; Thorp v. Railroad, 89 Mo. 650; Stephens v. Railroad, 96 Mo. 212; 2 Thomp. on Neg., 975; Keeghan v. Kavanaugh, 62 Mo. 230.

Thos. G. Rutledge and Seddon & Holland for respondent.

The court did not err in giving a peremptory instruction at the close of plaintiff's testimony: (1) Because the evidence failed to show that the ladder upon which plaintiff was working when he fell was furnished by defendant. (2) Because there was no evidence tending to sustain the allegation of plaintiff's petition that defendant was negligent in failing to furnish plaintiff a helper, and plaintiff assumed the risk of working without one. Leitner v. Grieb, 77 S.W. 764; Steinhauser v. Spraul, 127 Mo. 541; Nugent v. Kauffman M. Co., 131 Mo. 241; Halloran v. Union Iron & F. Co., 133 Mo. 470; Winkler v. St. L. Basket & Box Co., 137 Mo. 394. (3) Because, even had defendant been negligent in failing to furnish a helper before noon the risk of working without one until that time was expressly assumed by plaintiff. Devitt v. Railroad, 50 Mo. 302; Cagney v. Railroad, 69 Mo. 416; Smith v. Railroad, 69 Mo. 32; Price v. Railroad, 77 Mo. 510; Nugent v. Milling Co., 131 Mo. 241; Lucey v. Oil Co., 129 Mo. 32; Fugler v. Bothe, 117 Mo. 475; Steinhauser v. Spraul, 127 Mo. 541; Epperson v. Postal Tel. Co., 155 Mo. 346; Roberts v. Tel. Co., 66 S.W. 157; Matthis v. Kansas City, etc., 84 S.W. 66; Railroad v. McDade, 135 U.S. 554; Railroad v. McDade, 191 U.S. 64; Miller v. Cordage Co., 126 F. 195; Higgins v. Carpet Co., 79 F. 900; Kneisley v. Pratt, 148 N.Y. 372; Goodrich v Washington Mills, 160 Mass. 234; O'Malloy v. Boston Gas, 158 Mass. 135. (4) Because there was no evidence to sustain the allegation of plaintiff's petition that defendant was guilty of negligence in furnishing a ladder which was not so constructed as to prevent it from slipping on a granitoid floor, and plaintiff assumed the risk of using same. Minnier v. Railroad, 167 Mo. 99; Steinhauser v. Spraul, 127 Mo. 541; Halloran v. Union Iron & Foundry Co., 133 Mo. 470; Winkler v. St. L. Basket & Box Co., 137 Mo. 394. (5) Because, even had defendant been negligent in failing to furnish a ladder equipped with prongs, plaintiff had full knowledge of the exact structure of the ladder, and assumed the risk of using same. Steinhauser v. Spraul, 127 Mo. 541; Borden v. Daisy Rolling Mills, 98 Wis. 407; Cahill v. Hilton, 106 N.Y. 512; Wood v. Tileston H. Co., 13 Amer. Neg. Rep. 321; Marsh v. Chickering, 101 N.Y. 396.

OPINION

Page 104

[189 Mo. 555] MARSHALL, J.

This is an action for $ 10,000 damages for personal injuries alleged to have been received by the plaintiff on the 17th of May, 1899, while in the employ of the defendant and engaged in the work of erecting a handcar freight elevator in a building, number 21 South Third street, in the city of St. Louis.

At the close of the plaintiff's case, the court sustained a demurrer to the evidence, the plaintiff took a nonsuit with leave and after proper steps appealed to this court.

THE ISSUES.

The petition states that the defendant is a domestic corporation, and that on the 17th of May, 1899, the plaintiff was employed by the defendant to erect an elevator in the building on the west side of Third street in the city of St. Louis; that in order to properly do the work it was necessary for the plaintiff to ascend a ladder from the basement to the second (first) floor; that he requested the defendant to furnish him the usual and necessary laborers or helpers to assist him, together with necessary tools and appliances, but that defendant "wilfully, carelessly and negligently failed either to furnish said helper, or to furnish him with the necessary and proper tools and appliances to enable him to properly and safely do said work, in this, that the ladder furnished by defendant and which he was directed to use and did use, was not so constructed as to prevent it from slipping or giving way when placed upon a granitoid flooring or any smooth surface;" that in doing the work he ascended the ladder, resting the base thereof on the granitoid floor of the basement; that the ladder slipped and fell and he sustained the injuries complained of.

[189 Mo. 556] The answer is a general denial, with a plea of contributory negligence, and of assumption of risk.

The case made is this:

The plaintiff was engaged in the business of constructing elevators, or more properly speaking, doing the mill-wright work in the erection and construction of elevators. He had been engaged in that business about twenty-five years and prior to the accident had worked for the defendant many times, and also for other persons and companies that were engaged in such business. The day before the accident he applied to the defendant for work and was told that he would be employed the next morning. Accordingly on the next morning, when he presented himself for work, he was employed to put up a handcar freight elevator in the building numbered 21 South Third street. Said elevator was to extend from the basement to the first floor, a distance of ten feet. When employed, one of the officers said to him: "Pick up your tools and come with me and put up a handcar elevator." Accordingly, the plaintiff went to his tool chest and picked up such tools as he thought he would need, and then asked where the helper was. The officer answered: "Well, they are busy just now...

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