Boehm v. General Electric Company
| Decision Date | 31 December 1913 |
| Citation | 162 S.W. 723,179 Mo.App. 663 |
| Parties | JOHN BOEHM, Respondent, v. GENERAL ELECTRIC COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted November 4, 1913.
Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.
AFFIRMED.
Judgment affirmed.
Dawson & Garvin for appellant.
(1) No negligence of defendants directly causing plaintiff's injury was shown, and the demurrer to the evidence should have been sustained as to both defendants at the close of plaintiff's case. Stanley v. United Ry. Co., 114 Mo. 606; Feary v. Railroad, 162 Mo. 75; Bohn v Railroad, 106 Mo. 429; Brands v. St. Louis Car Co., 213 Mo. 698; Patton v. Railroad, 179 F 530; Frye v. Railroad, 200 Mo. 398; Bowen v. Railroad, 95 Mo. 274; Abbott v. Mining Co., 112 Mo.App. 550; Breen v. St. Louis Cooperage Co., 50 Mo.App. 202; Gibbons v. Steam Nav. Co., 175 Mass. 212; Baecker v. Railroad, 240 Mo. 507; Smith v. Bispham, 52 N.Y. Supr. Ct. 33. (a) The doctrine of res ipsa loquitur does not apply to a case like the one at bar. Gardner v. Railroad, 223 Mo. 389; Zachra v. Mfg. Co., 159 Mo.App. 96; Evans v. Railroad, 222 Mo. 435. (2) The demurrer to the evidence should have been sustained as to the defendant General Electric Company, who was not plaintiff's master or employer. Authorities cited to Point 1, supra. (a) The petition charges a joint tort and does not state facts sufficient to constitute a separate cause of action against this defendant. Otrich v. Railroad, 154 Mo.App. 430; De-Donato v. Morrison, 160 Mo. 581; Weist v. City of Phila., 200 Pa. 148. (3) In any case plaintiff's injury is the direct result of plaintiff's contributory neglifence in voluntarily leaving a safe place and unnecessarily and for his own convenience going on to the temporary scaffold with full knowledge of the situation--thereby assuming whatever risk there was of such an accident happening as did happen. King v. Railroad, 211 Mo. 1; Baecker v. Railroad, 240 Mo. 507; O'Brien v. Western Steel Co., 100 Mo. 182; Bohn v. Railroad, 106 Mo. 429; Kinney v. Corbin, 132 Pa. 347; Calvin v. Railroad, 162 Mass. 533; O'Hare v. O'Rourke Const. Co., 120 N.Y.S. 404; Ramona O. S. C. v. Tate, 12 Ind. 57; Burk v. Ed. Gen. Elec. Co., 89 How. 498; Smith v. Bispham, 52 N.Y. Supr. Ct. 33; Hamilton v. Railroad, 83 Ga. 346. (4) No instruction given on behalf of plaintiff limiting the case to specific acts of negligence alleged in the petition, but plaintiff's instructions authorized the jury to find for plaintiff on any ground whether stated in the petition or not. This is reversible error. Beave v. Transit Co., 212 Mo. 331. (5) The court's refusal to give instruction D 5 asked by defendant was further error for above reasons and also because it is the law. Beave v. Transit Co., supra; Bohn v. Railroad, 106 Mo. 429; Beebe v. Transit Co., 206 Mo. 419.
Granville Hogan and Earl M. Pirkey for respondent.
(1) A petition may allege the doing of negligent acts jointly by two or more defendants and a recovery had against where the proof establishes the connection of but one defendant with the acts averred. Hutchinson v. Safety Gate Co., 247 Mo. 105; Winn v. Kansas City B. R. Co., 245 Mo. 412. A case may be reversed as to one defendant and affirmed as to another. Stotler v. Railroad Co., 200 Mo. 149. (2) A contractor and a subcontractor are respectively liable to their employees and to each other's employees where they have negligently injured them. Hutchinson v. Safety Gate Co., 247 Mo. 99; Clark v. Union Iron and Foundry Co., 234 Mo. 436. (3) Parties must so conduct themselves as not to injure others who are in pursuit of their lawful business. A person in conducting his work or business owes a duty of ordinary care to those lawfully at or about him. Young v. Waters Pierce Oil Company, 185 Mo. 666; Sykes v. Railroad, 178 Mo. 712; O'Keefe v. Railroad, 108 Mo.App. 177; The Asbury Park, 144 F. 553. (4) As a general rule a man is not required to look for danger when he has no cause to anticipate danger or when danger does not exist except it be caused by the negligence of another. Crawford v. Stockyards Company, 215 Mo. 414. A person in peril from the negligence of another is not required to adopt the safest and best course to avoid injury, but is only required to act with ordinary prudence. Hull v. Thomson Transfer Company, 135 Mo.App. 120. If there are two ways for a servant to do an act, one more dangerous than the other, both of which are furnished by the master with the intention that the employee may use either, he is not negligent in choosing the more hazardous course. Hutchinson v. Safety Gate Co., 247 Mo. 116. Even where a servant of his own free will chooses an unsafe way when a safer way is at hand, he can recover, unless the way he chose is so glaringly dangerous that no prudent person would have chosen it. Rhea v. Railroad, 171 Mo.App. 160; Railroad v. Thompson, 199 F. 395; American Car and Foundry Co. v. Ruckle, 200 F. 47. (5) The assignment that the verdict is against the weight of the evidence is an admission that there is sufficient evidence to support the verdict. Crawford v. Stockyards Co., 215 Mo. 402. (6) Nondirection is not error. If plaintiff's instruction on the measure of damages is correct he was not required to ask other instructions. Morgan v. Mulhall, 214 Mo. 451; State v. Conway, 241 Mo. 284; Tate v. Railroad, 159 Mo.App. 481.
This is an action by plaintiff, respondent here, against the Union Electric Light & Power Company and the General Electric Company, to recover damages for personal injuries alleged to have resulted from the joint tort of the defendants. The petition charges that on a day named plaintiff, then in the service of the Union Electric Light & Power Company, and while discharging the duties of his employment, was at work in a building belonging to the Union Electric Light & Power Company, in which building at the time of the accident the General Electric Company was installing certain machinery; that at the time of the accident both defendants were engaged in hauling and moving a heavy piece of machinery, known as an armature or field, from one part of the building to the other, by means of a crane, equipped with cables; that the cables were attached to an eyebolt in the field and that while the defendants were engaged in moving and handling this field they negligently caused and permitted it to incline and lean sidewise while the eyebolt was held as before mentioned, and negligently, etc., caused the crane, thimble, cables, hook and eyebolt to sustain so much of the weight of the field that undue force was exerted upon the eyebolt, and that because of this undue force, and because it was brittle, defective and insufficient to bear the weight of the field, and insufficient and not reasonably safe for the purpose for which the defendants were using it, the eyebolt broke; that by reason of this breaking of the eyebolt, the armature or field fell from its inclined to a horizontal position on the floor upon which it was located and that in falling it struck a scaffold on which plaintiff was then standing, thereby causing him to be thrown into a pit, to his hurt and injury. It is further charged that this eyebolt, at the time it broke and for a long time next prior thereto, was brittle, defective, insufficient and not reasonably safe to sustain the weight, and that the defendants knew, or by the exercise of ordinary care, could have known such was the fact, and of the danger to plaintiff arising from using it in the manner mentioned; that they had used the eyebolt in inclining this field before they caused the field to incline, yet thereafter they negligently caused the field to incline or lean as before stated and negligently used it without protection, or notice of any kind to plaintiff, and negligently failed to warn plaintiff of the danger, or of the defectiveness or insufficiency of the eyebolt, and thereby directly caused plaintiff to be injured as above set out. Judgment is demanded against both defendants in the sum of $ 20,000.
Defendants answered separately, the Union Electric Company by a general denial, the General Electric Company by a general denial followed by the averment that the scaffold mentioned in the petition was merely a temporary covering laid over a part of the top of the hole or pit in and about which plaintiff had been working; that there was a permanent stairway coming out of the hole or pit on to a permanent gallery or passageway with other permanent passageways or roads provided for the use of persons leaving the pit and passing through and out of the engine room, which the plaintiff might and should have used, but with notice and knowledge of the work that was being done in removing this field or armature and of the manner in which it was being done and of the place where it was being done and its proximity to the temporary covering or scaffold, negligently, voluntarily and unnecessarily left the permanent galleries or passage ways and negligently climbed over the rail of the gallery and got upon and attempted to use this scaffold or temporary covering over the hole or pit as a passageway, and negligently proceeded toward where the field or armature was being handled, and that if he had remained where he was, or used the permanent galleries he would have been in no danger of injury, and that whatever injury plaintiff may have sustained was the result of his own negligence and carelessness. A reply was filed to this.
There was a verdict and judgment in favor of the Union Electric Light & Power Company but against the General Electric Company, the latter in the sum of $ 2000. The plaintiff appealed from the judgment in...
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