Conroy v. Iron-Works

• Decision Date: 28 May 1878
• Citation: 6 Mo.App. 102
• Parties: JAMES CONROY, Respondent, v. VULCAN IRON-WORKS, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 102

JAMES CONROY, Respondent,

v.VULCAN IRON-WORKS, Appellant.

St. Louis Court of Appeals, Missouri.

May 28, 1878.

Where appliances are palpably dangerous, if a servant uses them he takes the risk; but where no immediate danger is threatened, or where it is reasonable to suppose that by great caution and skill danger may be avoided although the machinery or appliance is still used, the servant does not assume the same risk; and if the servant has called the attention of his superior to the supposed risk, and has had a promise that the needful repairs will be made, he may rely upon that promise until such time has elapsed as would show that the promise will not be carried out, or that it has been broken. And if, supposing that by using care he may continue his work and be safe, and relying on his master's promise, the servant continues his employment, the mere fact that he knew of the danger is no bar to a recovery.

APPEAL from St. Louis Circuit Court.

Affirmed.

CLINE, JAMISON & DAY, for appellant: Where the pleadings admit that plaintiff had full knowledge of the dangerous condition of the apparatus which caused his injury, the case should not be permitted to go to the jury.-- Cummings v. Collins, 61 Mo. 520. Where the defence is plaintiff's knowledge of the dangerous condition of the machinery, it is error to give instructions which ignore the defence.-- McDermott v. Railroad Co., 30 Mo. 115; Harper v. Railroad Co., 47 Mo. 567; Debitt v. Railroad Co., 50 Mo. 302; Gibson v. Railroad Co., 46 Mo. 163. Plaintiff must allege and prove his ignorance of the danger and the defect which caused his injury.--Whart. on Neg., sect. 300; Greenleaf v. Railroad Co., 29 Iowa, 14. When the servant knows the default of his master, he assumes the risk and cannot charge it to his master.-- Wright v. Railroad Co., 25 N. Y. 566; Buzzell v. Manufacturing Co., 48 Mo. 115; Thayer v. Railroad Co., 22 Ind. 26; Haydon v. Manufacturing Co., 29 Conn. 348; Railroad Co. v. Barber, 5 Ohio St. 541.

MCGINNIS & SEARLE and FINKELNBURG & RASSIEUR, for respondent, cited: Conroy v. Vulcan Iron-Works, 62 Mo. 35; Dale v. Railroad Co., 63 Mo. 460; Cummings v. Collins, 61 Mo. 524.

BAKEWELL, J., delivered the opinion of the court.

This cause, on a former occasion, was sent back for retrial, by the Supreme Court, and will be found reported in 62 Mo. 35. It is unnecessary, for the purposes of this opinion, that any fuller statement of the case should be made. It is enough to refer to the opinion just cited.

The only errors insisted upon here are thus stated by counsel for appellant in his brief: “It is admitted by the pleadings in this case that respondent had full knowledge of the dangerous condition of the floor of the hoist at the time it gave way and caused his injuries; and the case should not have been permitted to go to the jury. Respondent's second and third instructions are error. They both ignore the defence set up and proved, that the respondent knew, at the time he received the injuries, of the dangerous condition of the floor of the hoist. The court committed error in refusing defendant's instructions, as they were based upon facts admitted by the pleadings and proved at the trial. The case was sent back by the Supreme Court to try the very issue that was stricken out of the petition and admitted by the reply. Respondent took from his petition all cause of action by striking out his allegations of want of knowledge of the danger at the time of his injuries. It was incumbent on respondent to allege and prove that he was ignorant of the defect and the danger that caused his injury; otherwise it would appear that he was willing to encounter it in consideration of his being retained in service. An employee cannot recover for an injury suffered from...