Blundell v. William A. Miller Elevator Mfg. Co.

• Decision Date: 15 June 1905
• Citation: 88 S.W. 103,189 Mo. 552
• Parties: BLUNDELL v. WILLIAM A. MILLER ELEVATOR MFG. CO.
• Court: Missouri Supreme Court

88 S.W. 103

189 Mo. 552

BLUNDELL v. WILLIAM A. MILLER ELEVATOR MFG. CO.

Supreme Court of Missouri, Division No. 1.

June 15, 1905.

1. MASTER AND SERVANT — MASTER'S DUTY — SAFE APPLIANCES.

A master must furnish reasonably safe appliances, considering the character of the work, but they need not necessarily be the latest or best.

2. SAME — ASSUMPTION OF RISK.

A servant assumes the risks that ordinarily and usually are incident to the business being conducted by the master.

3. SAME — RISK OF MASTER'S NEGLIGENCE.

The risks assumed by a servant do not include subsequent negligence of the master.

4. SAME — KNOWLEDGE OF DANGER.

Where a master fails to furnish safe appliances, and the servant knows, or by ordinary care could know, that the appliances are not reasonably safe, he is not obliged to refuse to use them or quit the service, if he reasonably believely that by the exercise of proper care he can safely use the appliances.

5. SAME — OBVIOUSLY DANGEROUS APPLIANCE.

Where an appliance furnished a servant is obviously so dangerous that no reasonably prudent man would try to use it, or if the danger threatens immediate injury, the use of the appliance is contributory negligence.

6. SAME — INSUFFICIENT FORCE FOR WORK.

Where plaintiff was employed by defendant to erect an elevator in the latter's building, and before going to work he asked for a helper, but was told that one could not be furnished him until the afternoon, and the manner of doing the work was left entirely to plaintiff, who was an expert, he assumed the risk of doing the work without a helper.

7. SAME — APPLIANCES — EVIDENCE.

Where plaintiff, on going to work to put in an elevator for defendant in the latter's building, found a ladder lying close to the materials which were to be used in the construction of the elevator, but it was not shown who put it there or to whom it belonged, there was no showing that the ladder was one of the appliances which the master had furnished.

8. SAME — SAFE — APPLIANCES — LADDERS.

It was not negligence for a master to fail to provide a ladder with prongs or safety hooks at the bottom, though the ladder was to stand on a granitoid floor.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by William H. Blundell against the William A. Miller Elevator Manufacturing Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Wm. H. Clopton, for appellant. Thos. G. Rutledge and Seddon & Holland, for respondent.

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 hand-car freight elevator in a building (No. 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 a 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 "willfully, 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. 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 millwright work in the erection and construction of elevators. He had been engaged in that business about 25 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 hand-car freight elevator in the building No. 21 South Third street. Said elevator was to extend from the basement to the first floor, a distance of 10 feet. When employed, one of the officers said to him: "Pick up your tools, and come with me, and put up a hand-car 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, and I can't let you have a man until noon time." The officer of the defendant then accompanied the plaintiff to the building, and pointed out to him some materials that were lying on the floor of the building, and told him to go ahead and put up the guideposts that run on each side of the platform, and he would send a man to help him at the heavier work upstairs. The hatchway had not been completed by the carpenters who were engaged in the construction of the building, and the plaintiff first proceeded to complete the hatchway in the floor of the first story for the elevator. After so doing he went into the cellar, the floor of which was made of granitoid. He made a hole through the granitoid for one of the posts to rest in, and set up the post. He then went up to the first floor of the building, and found a ladder 12 feet long, which was lying with, or in close proximity to, the materials intended to be used in the construction of the elevator. He placed this ladder in the hatchway; the lower end resting on the granitoid floor of the basement, and the upper end extending above the floor of the first story. The end of the ladder which rested on the granitoid was rounded. The plaintiff then get onto the ladder for the purpose of completing the work of setting up the guidepost, and while so engaged the ladder slipped, and he fell and was injured. Respecting the ladder, the only testimony in the case is that of the plaintiff himself, who testified as follows: "Question. Now, you don't know whom this ladder belonged to, do you? Answer. I don't know. It was lying there with the elevator material. That is all I know about it. Mr. Hackman told me that was the material I was to use, and the ladder was lying there. I supposed it belonged to Mr. Miller, but I wasn't sure about it, and don't know now who it belonged to. Question. And you took this ladder and put it down to the basement floor? Answer. Yes, sir. Question. The ladder itself was perfectly sound, was it? Answer. It looked to me to be sound; yes, sir. Question. Was it sound? Answer. From all appearances, it was sound." The plaintiff says he placed the foot of the ladder at a distance of about 2½ or 3 feet from the wall; that the reason the ladder slipped was because it was not equipped with prongs. "Question. Now, when you picked this ladder up and took it down there, you saw, didn't you, that there was no fastenings or anything of that kind on the bottom of it? Answer. There was no iron on the bottom of it. Question. You saw that yourself? Answer. Yes, sir." The plaintiff further testified that he was familiar with the use of ladders, and understood how to handle them. He further testified that at no time prior, when he had worked for the defendant, had the defendant ever used or furnished a ladder with a prong or fastening attached thereto, to keep it from slipping. The testimony showed that the building in which the elevator was to be constructed was in process of construction, and that there were other men and carpenters engaged in doing other work on the building; some of them making the staircase between the first floor and the basement.

The gravamen of the plaintiff's case is that the defendant willfully, carelessly, and negligently failed to furnish the plaintiff with a helper, and likewise furnished him with a ladder that was not so constructed as to prevent it from slipping when one end thereof was placed upon a granitoid floor.

The learned counsel for the parties hereto have collated a great number of decisions of the courts of this and other states bearing upon the question of the assumption of risks, and the duty of the master to his servant. It would serve no good purpose to attempt to reconcile the adjudications upon the subject of assumption of risks. The prior state of adjudication will be found fully discussed in the following Missouri cases: Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102, 27 L. R. A. 441; Winkler v. St. Louis Basket Co., 137 Mo. 394, 38 S. W. 921; Bradley v. Railroad, 138 Mo. 302, 39 S. W. 763; Hamman v. Coal Co., 156 Mo. 232, 56 S. W. 1091; Pauck v. St. Louis Dressed Beef Co., 159 Mo. 467, 61 S. W. 806; Grattis v. Railroad, 153 Mo. 380, 55 S. W. 108, 48 L. R. A. 399, 77 Am. St. Rep. 721; Connolly v. St. Joseph Press Printing Co., 166 Mo., loc. cit. 463, 66 S. W. 268; Minnier v. Railroad, 167 Mo., loc. cit. 112, 66 S. W. 1072; Holmes v. Brandenbaugh, 172 Mo., loc. cit. 66, 72 S. W. 550; Haviland v. Railroad, 172 Mo., loc. cit. 112, 72 S. W. 515; Curtis v. McNair, 173 Mo., loc. cit. 279, 73 S. W. 167; Parks v....