Cabanne v. St. Louis Car Co.

• Decision Date: 02 December 1913
• Citation: 178 Mo. App. 718,161 S.W. 597
• Parties: CABANNE v. ST. LOUIS CAR CO.
• Court: Missouri Court of Appeals

161 S.W. 597

178 Mo. App. 718

CABANNE v. ST. LOUIS CAR CO.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

1. MASTER AND SERVANT (§ 125)—MASTER'S DUTY—APPLIANCES.

A master who has exercised ordinary care to furnish a reasonably safe appliance is not liable for injuries resulting from it becoming defective while in use, unless he should have known of the defect by exercising ordinary care long enough to have enabled him to remove it.

2. MASTER AND SERVANT (§ 258)—INJURIES— ALLEGATIONS OF PETITION.

Allegations of the petition, in an action for injuries by the steering gear of an automobile separating and causing a collision while plaintiff was demonstrating the car for defendant, that the injuries were the direct result of defendant's negligence in furnishing a car with defective steering apparatus, grounded the action on negligence in not originally furnishing a reasonably safe appliance, and hence need not allege that defendant should have known of the defect.

3. MASTER AND SERVANT (§ 285)—INJURIES— JURY QUESTION—CAUSE OF INJURY.

In an action for injuries by the steering gear of an automobile which plaintiff was demonstrating for defendant separating and causing a collision with a tree, whether the injury was caused by the defective steering gear or the explosion of a tire held a jury question.

4. MASTER AND SERVANT (§ 107)—MASTER'S DUTY—REPAIRING APPLIANCES.

When defendant overhauled an automobile for plaintiff's use in demonstrating, it was defendant's duty to exercise ordinary care in reconstructing all parts of it, including the steering gear.

5. MASTER AND SERVANT (§ 265)—PRESUMPTIONS— PERFORMANCE OF DUTY.

The presumption that an employer did his duty with respect to furnishing a reasonably safe appliance is not conclusive.

6. MASTER AND SERVANT (§§ 101, 102)—MASTER'S DUTY—SAFE APPLIANCES.

A master must exercise ordinary care in furnishing a reasonably safe appliance.

7. MASTER AND SERVANT (§ 125)—MASTER'S DUTY—SAFE APPLIANCES.

An employer who undertakes to construct and furnish an appliance need not, as a condition to liability for defects therein, be given notice of a defect which he could have discovered by exercising ordinary care in constructing the appliance.

8. MASTER AND SERVANT (§ 289)—INJURIES— CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries by the coming apart of the steering gear of an automobile furnished to plaintiff for demonstrating, resulting in a collision with a tree, whether plaintiff was guilty of contributory negligence in exceeding the speed limit or otherwise held a jury question.

9. NEGLIGENCE (§ 134) — EXCEEDING SPEED LIMIT—PRIMA FACIE EVIDENCE.

Running an automobile at a speed in excess of that permitted by statute is prima facie negligence.

10. MASTER AND SERVANT (§ 247)—INJURIES — CONTRIBUTORY NEGLIGENCE — PROXIMATE CAUSE.

The fact that an employé, when injured, is running an automobile in excess of the statutory speed limit, will not bar a recovery, unless such negligence proximately contributed to his injury.

11. MASTER AND SERVANT (§ 289)—INJURIES —JURY QUESTION—PROXIMATE CAUSE.

In an action for injuries from the breaking of the steering gear of an automobile which plaintiff was demonstrating for defendant, causing a collision with a tree, whether plaintiff's negligence in running in excess of the statutory speed limit proximately contributed to his injury held a jury question.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by C. Gratiot Cabanne against the St. Louis Car Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant. Jones, Hocker, Hawes & Angert, of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff through the negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant manufactures and sells automobiles, and plaintiff was in its employ as a demonstrator and salesman of its automobiles at the time of his injury. It appears plaintiff was demonstrating an automobile to a prospective purchaser when the steering gear of the machine separated and caused it to collide with a tree in Forest Park with such force as to demolish the automobile and throw plaintiff upon the earth so as to fracture his skull at the base of the brain.

It is argued, first, on the part of defendant, that the petition is insufficient to state a cause of action against defendant in that it omits to aver defendant either knew or might have known of the defective steering gear attached to the automobile; but we are not so persuaded.

Defendant seems to confuse the doctrine requiring the master to exercise ordinary care in the matter of construction and furnishing appliances reasonably safe for the use of his servant with that which obtains with respect to appliances which, though reasonably safe when furnished, become defective thereafter. No one can doubt that the master performs the full measure of his duty enjoined by the law when he exercises ordinary care to discover defects and furnishes the servant an appliance reasonably safe for use. If, after the master has performed this duty of furnishing a reasonably safe appliance, it becomes defective while in use, no recovery may be allowed as for a breach of the obligation with respect to that matter unless it appears the master either knew, or by exercising ordinary care in that behalf might have known, of the defect for a sufficient length of time to remove it. Mueller v. Shoe Co., 109 Mo. App. 506, 84 S. W. 1010. However, this rule is beside the case here, for no complaint is made with respect to the failure of the master to perform his duty after the automobile was furnished to plaintiff reasonably safe for the purposes of demonstration; but, on the contrary, the petition proceeds on the theory that defendant breached the obligation, which the law cast against it, to exercise ordinary care in furnishing plaintiff with an appliance—that is, an automobile—reasonably safe for use in demonstration, in that it furnished him an automobile with a defective steering apparatus, which separated while running and occasioned his hurt. The averment touching this matter is: "Plaintiff further states that the injuries aforesaid sustained by plaintiff were the direct result of the negligence and carelessness of the defendant in furnishing him with a car with unsafe, dangerous, and defective steering apparatus as aforesaid." In other portions of the petition it is set forth that the sector lever, or, as some call it, the steering arm, separated from the tie link in the rod to which it was attached, and this, too, though the machine was apparently safe for use.

The petition proceeds throughout upon the theory that defendant breached its obligation to exercise ordinary care in furnishing plaintiff a reasonably safe appliance. Such being true, it is not essential to aver that defendant either knew or might have known of the defect by exercising ordinary care to that end, and an averment that the master negligently furnished the appliance will suffice. See Young v. Shickle, etc., Iron Co., 103 Mo. 324, 15 S. W. 771; Fassbinder v. Mo. Pac. R. Co., 126 Mo. App. 563, 104 S. W. 1154.

It is urged the court should have peremptorily directed a verdict for defendant, but the argument is obviously without merit. The evidence tends to prove that the automobile furnished plaintiff was an old one, but had been overhauled by defendant and furnished to plaintiff as sufficient and asserted to be in fine shape but a week or ten days before. As before said, plaintiff was a demonstrator and salesman of automobiles for defendant. The automobile involved here was a large one which weighed about 3,500 pounds, possessing a minimum of 14 horse power and a maximum of 18 horse power. It had been in the service of defendant about a year and a half and was first used with a wagon body on it for the purpose of...