Cody v. Lusk

• Decision Date: 12 December 1914
• Docket Number: No. 1316.,1316.
• Citation: 171 S.W. 624
• Parties: CODY v. LUSK et al.
• Court: Missouri Court of Appeals

171 S.W. 624

CODY v. LUSK et al.

No. 1316.

Springfield Court of Appeals. Missouri.

December 12, 1914.

1. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — PRESUMPTION — NEGLIGENCE.

While there is no presumption of negligence from the mere fact of injury to a servant, yet where injury to a servant was traced to a defect in horses supporting a scaffold, with extensions consisting of upright boards five inches wide and one inch thick, nailed to the upper crosspiece of the horses by one nail, having notched tops supporting a bar from which was suspended a motor used in drilling holes in an upright boiler, one of which extensions, without any violent movement or extra weight, gave way and caused him to fall, the proof of the occurrence and its attending circumstances, in the absence of any explanation, and without the aid of any presumption from the occurrence alone, warranted an inference of actionable negligence, in that the injury was due to a defective appliance furnished by the master.

2. MASTER AND SERVANT (§ 125) — APPLIANCES FOR WORK — DEFECTS — ACTUAL OR CONSTRUCTIVE NOTICE.

A defect in the original construction of horses used to support a scaffold and extensions to support a motor used in drilling an upright boiler, made by defendant's servants, charged defendant with actual knowledge thereof; and, if the defect resulted from long usage without any inspection, it would warrant a finding of the master's constructive notice.

3. MASTER AND SERVANT (§ 124) — MASTER'S DUTY — SAFE APPLIANCES.

It is a master's duty to inspect the appliances furnished to a servant for use, both to see that they are reasonably safe to start with, and to keep them in that condition, so that the duty to inspect and make ordinary mechanical tests at reasonable intervals is an affirmative and continuous duty; and the master must take notice that instrumentalities, such as wooden horses used in supporting scaffolding, deteriorate and weaken by usage.

4. MASTER AND SERVANT (§ 233) — APPLIANCES FOR WORK — SELECTION BY SERVANT — CONTRIBUTORY NEGLIGENCE.

The principle that a servant is guilty of negligence as a matter of law in selecting a defective appliance out of a large number applies only to such defects as are so obvious that reasonable care must lead to their discovery; and where a servant made use of his eyes in selecting a wooden horse which appeared to be sound and safe out of a number, some good and some bad, that was all the law required of him; but, if the defect had been so obvious that a man of his knowledge and experience would have discovered

it by ordinary care, it would have been his duty to discard such defective appliance and select another apparently safe, or to make the necessary repair.

5. MASTER AND SERVANT (§ 235) — APPLIANCES FOR WORK — CONTRIBUTORY NEGLIGENCE — RELIANCE ON MASTER'S INSPECTION.

Unless the duty to inspect appliances furnished him for work is imposed on the servant, he may rely on the master's discharge of such duty, and on the tools and appliances furnished as being reasonably safe.

6. MASTER AND SERVANT (§ 238) — APPLIANCES FOR WORK — CONTRIBUTORY NEGLIGENCE.

A servant working on a scaffold 11 feet high, supported by wooden horses, with board extensions 5 inches wide and 1 inch thick, notched at the top to support a bar from which was suspended a motor used in the work of drilling, was not necessarily negligent in staying on the platform while his helper was moving one end of the horse a few inches, and who then went to the other end so that little, if any, of his weight was on the end being moved, and receiving injury by the giving way of one of the extensions through a defect not apparent to him; since he was only required to do what a reasonably prudent man would do under the circumstances, relying on the master to furnish him safe appliances to work with.

7. MASTER AND SERVANT (§ 135) — INJURY TO SERVANT — UNSAFE METHOD OF WORK.

The placing of an 11-foot boiler on end instead of in a horizontal position, necessitating a scaffold and extensions to support a servant engaged in drilling holes in the boiler and a motor used in his work, was not of itself negligence which would warrant a recovery for injury from the giving way of the extension and a fall of the scaffold, as in order to establish negligence more must be shown than that the method of doing the work was different from that used by others, and within the limitations of reasonable safety the master may conduct his work in his own way, even if another method is less dangerous.

8. MASTER AND SERVANT (§ 130) — INJURY TO SERVANT — METHOD OF WORK — CUSTOM.

In such case, the servant could prove that the master adopted a method less safe than the usual method, though the less safe method must be one which is not itself reasonably safe.

9. MASTER AND SERVANT (§ 135) — INJURY TO SERVANT — METHOD OF WORK — EVIDENCE.

A master charged with negligence in his method of work may disprove it by showing that the act done or the instrumentalities or method used conformed to common usage in the same business; but, while conformity to usage disproves negligence, nonconformity to usage does not prove negligence.

10. MASTER AND SERVANT (§ 129) — INJURY TO SERVANT — METHOD OF WORK — "PROXIMATE CAUSE."

The method of drilling an 11-foot boiler by standing it on end and using a scaffold consisting of wooden horses supporting crosswise planks, with extensions consisting of planks 5 inches wide and 1 inch thick, fastened to the horses by only one nail, with notched tops for a rod supporting a motor used in the work, in the course of which one of the extensions gave way as the horse was being moved a few inches, causing a servant's fall and injury, was not the proximate cause of the injury; the negligence which is the "proximate cause" of an injury being that negligence which operates to produce particular consequences without the intervention of any independent unforeseen cause, without which the injury would not have occurred, that negligence which sets in motion a train of events which in their natural sequence might and ought to be expected to produce an injury, if undisturbed by any independent or intervening cause.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Joseph Cody against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants appeal Reversed and remanded.

Mann, Todd & Mann, of Springfield, and W. F. Evans, of St. Louis, for appellants. Fielding P. Sizer, of Monett, for respondent.

STURGIS, J.

Plaintiff recovered a judgment for personal injuries received by him while in the employ of defendants, as receivers of the St. Louis & San Francisco Railroad Company, in the capacity of a boiler maker working at defendants' shops in Springfield, Mo. His injuries resulted from a fall from the scaffold on which he was working at drilling flexible sleeves from the boiler sheet of a locomotive, using for that purpose a drill operated by electric power. The locomotive boiler on which he was working had been stripped from the trucks and other machinery and set up on end on the floor in a perpendicular manner; the top being between 11 and 12 feet high. Part of the work had to be done near the top, and in doing this plaintiff used a scaffold made of two "wooden horses" with boards 16 to 20 feet long extending horizontally from one to the other, forming a platform on which he stood at his work. These horses were about 10 feet high, each formed of two ladders, similar to an ordinary carpenter's ladder, hinged together at the top and spreading at the bottom, with an iron rod near the bottom extending from one to the other so as to keep them from spreading further apart, making a horse on the principle of a stepladder which would stand without leaning against anything. The platform was made of two boards about a foot wide resting on a crosspiece of each ladder or horse and could be made higher or lower by putting these boards on higher or lower crosspieces.

The motor used weighed about 150 pounds and was suspended, raised, and lowered by means of a chain attached to it and passing over an iron bar made of 2-inch gas pipe extending from the top of one horse to the top of the other, and, as these horses were not built high enough, an extension to each was made of an upright board, 1 inch thick and 5 inches wide and 3 to 4 feet long, nailed on each horse with a V-shaped notch sawed in the top of each extension and the pipe laid in these notches. This horizontal bar supporting the motor was therefore about 13 or 14 feet from the floor, and the chain passing over it held the motor suspended at one end and a balance weight at the other. The cause of plaintiff's fall and resultant injury was that it was necessary in drilling to have the motor at right angles with the hole being drilled, and to do this to move from time to time by sliding along the floor one of the horses a distance of from 2 to 5 or 6 inches. The plaintiff had a helper in doing his work and, while the helper was moving one of these horses for the purpose just mentioned, the extension thereon gave way, letting down the end of the rod supporting the motor, which in turn slid down against the horse, tipping it over, and the whole thing collapsed, throwing plaintiff to the floor, one of the boards falling on him and breaking his leg.

The petition, after stating that while plaintiff was working with the boiler placed in an upright position the scaffold fell by reason of the extension giving way, alleges defendants' negligence as follows:

"Plaintiff states that his injuries as aforesaid were due to the negligence of the defendants in failing to exercise ordinary care to furnish plaintiff with a reasonably safe place to work, and in failing to exercise ordinary care to furnish plaintiff with reasonably safe horses and extensions, and in furnishing plaintiff with old and defective and...