Burkard v. A. Leschen & Sons Rope Company

• Decision Date: 09 March 1909
• Parties: JOHN BURKARD v. A. LESCHEN & SONS ROPE COMPANY, Appellant
• Court: Missouri Supreme Court

117 S.W. 35

217 Mo. 466

JOHN BURKARD v. A. LESCHEN & SONS ROPE COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 9, 1909

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.

Affirmed.

Percy Werner, Wm. F. Broadhead and Jones, Jones, Hocker & Davis for appellant.

Sterling P. Bond and R. L. Shackelford for respondent.

(1) Where the servant has apprehensions of the danger of the place where he is required to work but relies upon the assurance of the foreman, in charge of the work and in charge of the servant, that it is safe, and the servant is injured the master is liable for such injuries. Brothers v Carter, 52 Mo. 376; Lewis v. Railroad, 59 Mo. 508; Gormley v. Vulcan Iron Works, 61 Mo. 496; McGowan v. Railroad, 61 Mo. 532; Keighan v. Kavanaugh, 62 Mo. 232; Cook v. Railroad, 63 Mo. 403; Dowling v. Gerard B. Allen & Co., 74 Mo. 19; Stephens v. Railroad, 86 Mo. 230; Miller v. Railroad, 109 Mo. 357; Russ v. Railroad, 112 Mo. 53; O'Mellia v. Railroad, 115 Mo. 205; Moore v. Railroad, 85 Mo. 595; Cole v. Railroad, 183 Mo. 91; Carter v. Baldwin, 107 Mo.App. 226; Wojtylak v. Coal Co., 188 Mo. 261; Keilty v. Construction Co., 121 Mo.App. 58; Garard v. Coal & Coke Co., 207 Mo. 258; Dodge v. Mfg. Coal & C. Co., 115 Mo.App. 501; Edge v. Railroad, 206 Mo. 417; Bane v. Irwin, 172 Mo. 317. (2) The neglect of the duty of the master to use ordinary care in furnishing a reasonably safe place for his servants to work, with the servant's knowledge of the condition, does not convert the master's negligence into an assumption of the risk on the part of the servant. In such case the servant's knowledge of the condition is a fact to be considered under the plea of contributory negligence, and when the defense is based on that, it precludes a recovery only when danger is so glaring that a man of ordinary prudence, under the circumstances, would refuse to do his master's bidding. And where there is evidence that the master's failure to furnish a safe place to work was the result of his order to his employee, the question of whether the danger was so glaring and imminent as to make it contributory negligence for the servant to continue in his master's service, is a question for the jury. Curtis v. McNair, 173 Mo. 270; Wendler v. House Furnishing Co., 189 Mo. 502; Kielty v. Construction Co., 121 Mo.App. 63; Curtis v. McNair, 173 Mo. 270; Fogerty v. St. Louis Transfer Co., 180 Mo. 555; Dodge v. Mfrs. Coal & Coke Co., 115 Mo.App. 508; Koerner v. Car Co., 209 Mo. 157. (3) The foreman or other representative may occupy a dual capacity. If the master or foreman engage in the same kind of work with the laborers, still they are not fellow-servants. William Akin was such foreman and occupied a dual capacity. Gorman v. Vulcan Iron Works, 61 Mo. 495; Haworth v. Railroad, 94 Mo.App. 215; Rowland v. Railroad, 20 Mo.App. 469; Grattis v. Railroad, 153 Mo. 394; Miller v. Railroad, 109 Mo. 356; Russ v. Railroad, 112 Mo. 45; Dayharsh v. Railroad, 103 Mo. 570; Fogerty v. Transfer Co., 79 S.W. 669; Bien v. Railroad, 108 Mo.App. 399; Neves v. Green, 111 Mo.App. 641. (4) The servant simply assumes the risk of the dangers incident to his employment. He does not assume the risk of the master's negligence. A question of contributory negligence arises, not one of risk. Cole v. Railroad, 183 Mo. 94; Charlton v. Railroad, 200 Mo. 413. (5) Plaintiff's petition states a cause of action. A similar petition was held good in the case of Kielty v. Construction Co., 121 Mo.App. 58; Wojtylak v. Coal Co., 188 Mo. 206; Fisher v. Central Lead Co., 156 Mo. 485; Tucker v. Tel. Co. (Mo. App.), 112 S.W. 7. The objection to the petition is raised in the appellate court for the first time and comes too late. Dodge v. Mfrs. Coal & Coke Co., 115 Mo.App. 507. After trying a cause on a certain theory in the trial court, it is too late for a party to change front in the upper court, and repudiate that theory. Epperson v. Cable Co., 155 Mo. 370.

OPINION

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 two hundred 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 a hundred and a hundred and twenty-five pounds each, and before being removed had been piled up in the form of columns. They had removed over three hundred of these coils, and plaintiff was coming back with an empty truck, and while in the aisle, about ten 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 ten or twelve 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 the 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 seventy-five dollars.

Besides plaintiff, the only eye-witnesses to the accident were William A. Akin and C. M. McKenzie, the latter being Government inspector, United States custom. 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 danger. McKenzie, the Government inspector, testified that he was standing ten or fifteen feet away from the men at the time the columns fell, and that he heard no remarks made such as testified to by plaintiff. The general foreman, Henry Peterson, testified for the defendant that Akin did not occupy the position of foreman, and had no authority over the men with whom he was working at the time, but that John H. Schleuter was then foreman. This testimony, however, was controverted by that of Akin, Schleuter and Burkard.

The court, at the request of plaintiff, instructed the jury as follows:

"1. The court instructs the jury that it was the duty of the defendant to furnish the plaintiff a reasonably safe place to work. If the jury believe and find from the evidence that William Akin was intrusted by the defendant with authority to superintend, control and command over the plaintiff, and was managing and controlling the work in question and the plaintiff, as defendant's agent; and if you further believe and find from the evidence that at the time of the plaintiff's injuries the wire columns were in a leaning condition and were thereby rendered dangerous and unsafe to work about, and that said Akin had authority to brace said columns so as to prevent them from being dangerous, and that it was a part of his duty to so brace them, and that said Akin either knew, or by the exercise of ordinary care would have known, that said wire columns were dangerous and unsafe by reason of the same being in a leaning condition, in time so that by the exercise of ordinary care he might have put or caused the same to be put in a reasonably safe condition by so bracing the same before the injuries of the plaintiff, and that the said Burkard at the time of the injuries exercised ordinary care, and while in the exercise of such care the wire columns fell on him in consequence of them being in a leaning condition, and thereby dangerous and unsafe, and he was thereby injured, then your verdict must be for the plaintiff.

"2. By the words 'ordinary care' as used in these instructions is meant that degree of care and caution usually exercised by reasonably prudent men under the same or similar circumstances, and by the word 'negligence' is meant a failure to...