Dunn v. Nicholson

• Decision Date: 05 March 1906
• Citation: 117 Mo. App. 374,93 S.W. 869
• Parties: DUNN v. NICHOLSON.
• Court: Missouri Court of Appeals

93 S.W. 869

117 Mo. App. 374

DUNN v. NICHOLSON.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

1. MASTER AND SERVANT—INJURIES TO SERVANT —APPLIANCES—CARE REQUIRED.

A master is not absolutely bound to furnish a servant with reasonably safe appliances, but is only required to use ordinary care to see that the appliances furnished are reasonably safe.

2. TRIAL—INSTRUCTIONS—ISSUES.

It is proper for the court to refuse instructions on a subject on which there is no issue.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Patrick Dunn against Frank Nicholson. From a judgment for plaintiff, defendant appeals. Reversed.

McAntire & Scott, for appellant. W. J. Owen and W. R. Robertson, for respondent.

ELLISON, J.

The plaintiff suffered injuries while in the employ of defendant in a zinc concentrating mill. He recovered judgment therefor in the trial court.

It appears that plaintiff and a man named Stumbo were fellow servants in defendant's employ under the immediate charge and direction of a foreman named Carmiday. In the mill there was a perpendicular shaft or passage-way three feet in width and seventy-five feet high, inside of which was a ladder made by nailing strips one foot apart onto perpendicular studding, which ran up the side of the shaft. In this shaft, an elevator belt with cups attached at certain distances apart revolved over pulleys by means of which water, and refuse rock were carried to the top and there dumped into a trough, and thence onto a dump pile outside of the mill. This elevator belt was about 150 feet long, was made of rubber, and was large and heavy, weighing about 1½ pounds to the foot. It was operated by a drive-belt revolving over a pulley, which was reached by the ladder referred to. On the day of plaintiff's injury, the elevator belt had broken and the mill was stopped in operation till it could be repaired. Plaintiff was directed by Carmiday to get a rope there at hand with which to carry the belt up to the top of the shaft. This rope was an inch in diameter and about five feet long and was called a "sling rope." Plaintiff procured the rope and attached it to the end of the belt by tying the ends together and looping it over the belt near the end, and prepared to carry it up the ladder by putting the loop of the rope over his shoulder, when Carmiday told him that that was the end he wanted to repair, whereupon plaintiff put it down, and slipped the rope off of the belt, and handed it to Stumbo to put on the other end, while he, in compliance with Carmiday's request, went after some belt hooks. On his return, Stumbo had put the rope over his shoulder and was part way up the ladder. Carmiday then directed plaintiff to assist Stumbo; which he did by going up the ladder between 20 and 30 feet and easing the weight of the belt for Stumbo by raising it. As Stumbo got to the top, plaintiff called out to him to "let's rest a minute." In response to this Stumbo took the rope off his shoulder and hung it over the end of the shaft. The heavy belt then slipped out of the rope, or, as expressed...