Burkard v. A. Leschen & Sons Rope Co.

• Decision Date: 09 March 1909
• Parties: BURKARD v. A. LESCHEN & SONS ROPE CO.
• Court: Missouri Supreme Court

117 S.W. 35

217 Mo. 466

BURKARD v. A. LESCHEN & SONS ROPE CO.

Supreme Court of Missouri, Division No. 2.

March 9, 1909.

1. MASTER AND SERVANT (§ 205)—ASSUMPTION OF RISK—COMPLAINT TO MASTER—ASSURANCE OF SAFETY.

Where a servant apprehends that his place of work is unsafe, but relies upon the master's assurance that it is safe, and is thereafter injured because of its unsafe condition, without contributory negligence, the master is liable.

2. MASTER AND SERVANT (§ 125)—MASTER'S NEGLIGENCE—PLACE OF WORK—KNOWLEDGE BY MASTER OF DEFECTS.

Where a servant, engaged in piling wire, told his foreman that a leaning column of wire looked dangerous, the foreman was negligent in assuring the servant that there was

no danger, without first ascertaining whether the column should be braced, particularly after his attention was called to it.

3. MASTER AND SERVANT (§ 190)—FELLOW SERVANTS — VICE PRINCIPALS — SUPERIOR SERVANT ASSISTING IN WORK.

Where plaintiff was under the control and direction of another in piling wire, they were not fellow servants though they worked together at the same time and place, the other being a vice principal.

4. MASTER AND SERVANT (§ 288)—INJURIES TO SERVANT—ACTIONS—JURY QUESTION.

In a servant's action for injuries sustained in piling wire by wire falling upon him, whether plaintiff called his foreman's attention to the leaning of the column and was assured that there was no danger therefrom, and continued work in reliance upon such assurance, held a jury question.

5. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—PLEADING—ISSUES.

Where the petition in a servant's action was based upon defendant's negligence in failing to furnish a safe place of work, and the answer alleged contributory negligence, whether plaintiff knew the danger was not an issue, the danger not being so imminent as to require plaintiff to quit work when his foreman assured him that the place was safe.

6. MASTER AND SERVANT (§ 102)—MASTER'S DUTY—SAFE PLACE OF WORK.

A master must use ordinary care to furnish a reasonably safe place of work.

7. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—PLEADING — PROOF — UNSAFE PLACE OF WORK.

In a servant's action for injuries caused by the master's failure to furnish a safe place of work, defendant may, under a plea of contributory negligence, show the servant's knowledge of the unsafe condition of his place of work.

8. MASTER AND SERVANT (§ 220)—ASSUMED RISK—NOTICE TO MASTER — CONTINUING WORK AFTER NOTICE.

Where the master, on the servant's complaint as to a dangerous condition in the place of work, assures the servant that the place is safe, the servant's knowledge of its dangerous condition will only preclude a recovery for injuries resulting therefrom, where the danger was so obvious that a man of ordinary prudence would have refused to continue work at the master's bidding.

9. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE— CONTINUING WORK WITH KNOWLEDGE OF DANGER—QUESTION FOR JURY.

Whether a danger was so obvious and imminent as to make it contributory negligence for a servant to continue work after the master had assured him that the situation was not dangerous is generally a jury question.

10. MASTER AND SERVANT (§ 281)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE— EVIDENCE.

In a servant's action for injuries sustained by a column of wire falling upon him, evidence held not to show that the danger from the leaning column of wire was so obvious and imminent as to make it contributory negligence for plaintiff to continue work after his foreman had told him there was no danger.

11. MASTER AND SERVANT (§ 248)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE— INJURY AVOIDABLE BY MASTER.

That the danger to a servant from a leaning column of wire was so obvious and imminent as to make the servant negligent in continuing work after his foreman had told him that there was no danger would not absolve the foreman from the duty of bracing the columns when his attention was called to their leaning position.

12. MASTER AND SERVANT (§ 90)—INJURIES TO SERVANT—PROTECTION OF SERVANT.

A master must exercise reasonable care to protect his servants from the hazards incident to their employment.

13. MASTER AND SERVANT (§ 196)—"FELLOW SERVANTS"—WHO ARE.

Those under the direction and management of a master, or of a servant placed over them by him, and engaged in the same common work, without dependence upon or relation to each other, are fellow servants.

14. MASTER AND SERVANT (§ 187)—FELLOW SERVANTS—"VICE PRINCIPAL."

A vice principal is one intrusted by the master with power to superintend, direct, or control workmen.

15. MASTER AND SERVANT (§ 187)—FELLOW SERVANTS—NEGLIGENCE OF VICE PRINCIPAL.

A master is liable for injuries to a servant caused by the negligence of his vice principal in the superintendence or direction of the work.

16. APPEAL AND ERROR (§ 1062)—HARMLESS ERROR—SUBMISSION OF ISSUES TO JURY.

In a servant's action for injuries caused by a column of wire which he was stacking falling upon him after he had called his foreman's attention to its leaning condition, error in submitting to the jury the question of the foreman's authority and duty to brace the columns was not prejudicial or reversible.

17. MASTER AND SERVANT (§ 291)—INJURIES TO SERVANT—INSTRUCTIONS—CONFORMITY TO ISSUES.

A petition alleged that plaintiff, told his foreman that he thought a column of wire which he was stacking looked dangerous and should be braced, and that the foreman said that there was no danger, and directed plaintiff

to go ahead, and, in obedience to the order, and relying upon such assurance, plaintiff continued the work, and was injured by the wire falling upon him; that the foreman knew or should have known that the place was dangerous, and could have been made reasonably safe by bracing the columns, but negligently failed to do so. Held to substantially allege that the place was dangerous because the columns were not braced, so as to warrant an instruction to that effect, especially where evidence was admitted thereunder without objection, and defendant failed to object to the petition, and the other instructions were correct.

Appeal from Circuit Court, St. Louis County; Jno. McElhinney, Judge.

Action by John Burkard against the A. Leschen & Sons Rope Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm. F. Broadhead, Percy Werner, and Jones, Jones, Hocker & Davis, for appellant. Sterling P. Bond and R. L. Shackelford, for respondent.

BURGESS, J.

Plaintiff recovered judgment in the court below for $5,000 damages for personal injuries alleged to have been caused by the negligence and carelessness of the defendant and its foreman, from which judgment defendant appeals.

The record shows that plaintiff was a laborer employed by the defendant company in its bonded warehouse in the city of St. Louis, and had been in the employ of the company about five months at the time of the injury, November 11, 1904. The company worked about 200 men in its warehouse, and had a general foreman named Henry Peterson, under whom were foremen or bosses in control of different gangs of men, two of said foremen being William A. Akin and Henry J. Schleuter.

The plaintiff's testimony was, in substance, as follows: On the day in question he, with three other men, was ordered by Foreman Akin to assist in removing wire bundles from one place in defendant's bonded warehouse to another. After working a while removing the bundles, Akin took three of the men to another part of the warehouse and showed them how to pile the wire, and then returned and assisted the plaintiff in removing the wire coils, placing them on trucks and hauling them to the place where the other men were stacking them up. The coils of wire weighed between 100 and 125 pounds each, and before being removed had been piled up in the form of columns. They had removed over 300 of these coils, and plaintiff was coming back with an empty truck, and while in the aisle, about 10 feet away, he noticed the columns which later fell on him, leaning over. He called the attention of the foreman to them, and told him to have them braced up, as they were getting dangerous. Akin replied, "Just go ahead; there is no danger; come on with your wagon." In obedience to the foreman's order, and relying upon his assurance that there was no danger, plaintiff continued his work. After they had removed two more loads of wire, the columns in question, which were 10 or 12 feet high, fell on plaintiff, breaking both his legs. His left ankle was dislocated and the small bone broken, and his right leg was broken and mashed. He was confined to his bed for about five months, under the care of physicians, and had been unable to do any work from the time he was injured. Plaintiff was not an experienced man, and had not been in the warehouse more than a dozen times during the five months he was in the employ of the company. He had seen the wire columns braced under the orders of different foremen, whose custom it was to give orders to have the columns braced when they deemed it necessary. Among those whom he had heard give such orders were Foremen Akin and Schleuter, and General Foreman Peterson.

Dr. William Baker testified as to plaintiff's injuries, stating that he was permanently injured; that he attended to plaintiff's injuries from November 30, 1904, to March 2, 1905, and that his bill for his services was $75.

Besides plaintiff, the only eyewitnesses to the accident were William A. Akin and C. M. McKenzie, the latter being government inspector, United States customs. Akin testified that he was foreman, and directed the plaintiff and the other men under his control in their work; that he was himself injured by the fall of the wire columns in question, and was laid up for over four weeks. He, however, denied that plaintiff said anything as to the dangerous condition of the columns, or that he told plaintiff there was no...