Dixon v. Frazier-Davis Construction Co.

Decision Date10 October 1927
Docket Number26257
Citation298 S.W. 827,318 Mo. 50
PartiesCharles C. Dixon v. Frazier-Davis Construction Company, Appellant
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis; Hon. Claude C Pearcy, Judge.

Reversed and remanded.

Jourdan & English for appellant.

(1) Where dangers causing the servant's injury are obvious and known to, or by the exercise of ordinary care could have been known to such servant in engaging upon the work, and where an ordinarily prudent person so knowing would not have continued so to work, there is a good defense of contributory negligence, and it was error for the court to strike out such defense from the answer of defendant. Van Bibber v Swift, 286 Mo. 317; McGinnis v. Press Brick Co., 216 Mo. 287; Zeigenmeyer v. Cement Co., 113 Mo.App. 330; Palmer v. Railroad, 259 Mo. 109; Harbacek v. Fulton Iron Works, 229 S.W. 803. (2) Where an expert structural iron worker is engaged in wrecking a bridge and going upon a portion of the iron work thereof without making any tests, which he says should be made, to determine the safety of such iron work, he cannot recover damages against his master caused by the giving way of such iron work, there being no assurance of safety given and the work being done in the usual way; because the servant under such circumstances either (a) assumes the risk, if it be an ordinary one, or (b) the servant, being in better position to observe any defects than the master, is guilty of contributory negligence in failing to apply the usual tests. Roberts v. Tel. Co., 166 Mo. 370; Korpall v Atlas Welding Co., 253 S.W. 506; Fugler v. Bothe, 117 Mo. 475; McMillan v. Busch, 234 S.W. 835; Zeigenmeyer v. Cement Co., 113 Mo.App. 330. (3) The master is not liable for injuries caused to the servant by dangers or defects in the place of work unless the master knew, or by diligence could know, of such dangers, and as a part of this rule there is no liability for failure to inspect unless the evidence shows that such inspection would have prevented the injury. Manche v. St. Louis Box Co., 262 S.W. 1021; Riger v. Leming Lumber Co., 210 Mo.App. 322; Ryan v. Lea, 249 S.W. 685. (4) The master is not an insurer of the servant's safety so far as the danger of the place where the servant is required to work is concerned. Nor is the master required to take such steps as will insure the servant's safety, but the servant, to hold the master liable, must prove that what the master did or failed to do would in the ordinary and usual course of business not have been done or neglected by an ordinarily prudent person engaged in the business in which the master is engaged. State v. Trimble, 274 S.W. 1028; Fugler v. Bothe, 117 Mo. 494; Milligan v. Light & Power Co., 304 Mo. 633; Meyers v. Strauss, 264 S.W. 801. (5) A servant assumes the risk of being injured in going into an unsafe place where the master's negligence did not create the unsafety of the place. Roberts v. Tel. Co., 166 Mo. 370; Fugler v. Bothe, 117 Mo. 475; Zeigenmeyer v. Cement Co., 113 Mo.App. 330. (6) An instruction is erroneous and confusing where it predicates liability of the master to the servant upon an order to do work in a particular place and by a particular method when there is no evidence that the master gave such order. Doody v. Woolen Mills Co., 230 S.W. 377; Albrecht v. Belting Co., 299 Mo. 12. (7) An instruction is erroneous which assumes that the evidence shows due care on the part of the plaintiff for his own safety. Ganey v. Kansas City, 259 Mo. 654; McMillan v. Bausch, 234 S.W. 835. (8) An instruction is erroneous which tells the jury that there is no duty on the part of a servant to inspect the premises where he is working to discover its dangerous condition, but the jury should be allowed to pass upon the question whether it is negligence for the servant to fail to inspect such premises. 39 C. J. 855; Wilson v. United Rys. Co., 181 S.W. 19.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The court did not err in striking out defendant's plea of assumption of risk. Curtis v. McNair, 173 Mo. 270; Patrum v. Railroad, 259 Mo. 109; Williamson v. Light & Power Co., 281 Mo. 544; Doody v. Woolen Mills Co., 274 S.W. 698. (2) The method of dismantling the brackets by sitting upon the upper arm while burning loose the attachment of the lower arm to the girder, was, at best, a hazardous work, and although the defendant had a right to adopt and pursue its own methods of doing the work, yet it was the defendant's duty to exercise, for the safety of its employees, a care commensurate in quality and degree with the known dangers of the work. Fisher v. Construction Co., 263 S.W. 1025; Curtis v. McNair, 173 Mo. 270; Stewart v. Gas Light Co., 241 S.W. 911. (3) The safety of the upper arm of the bracket, as a place of work in severing the lower arm, depended upon the security of its fastening to the girder. This fastening, although concealed from discovery by visual inspection, is shown (and, indeed, conceded) to have been so defective as to be wholly insecure. If, therefore, the defendant, by an inspection in degree and character commensurate with the known hazards of the work, would have discovered this insecurity, but failed to make such inspection, then the defendant must be held to have had knowledge of such insecurity and be guilty of negligence both in failure to make the inspection and to furnish a reasonably safe place. Clark v. Iron & Foundry Co., 234 Mo. 436; Gutridge v. Railroad Co., 105 Mo. 521; Hayes v. Ice Co., 221 S.W. 705; Scheurer v. Rubber Co., 227 Mo. 347; Poynter v. Fogel Const. Co., 265 S.W. 841; Bradley v. Ry. Co., 138 Mo. 293; Pendergrass v. Railroad Co., 179 Mo.App. 517. (4) The fact that the fastening of the horizontal bar of the bracket to the girder who so covered with paint as to prevent discovery of its defects and weakness by looking at it, while it might excuse the plaintiff from knowledge of the defects and weakness, did not excuse the master, because "looking, under such circumstances, would not be sufficient," and if ordinary care under the circumstances required the master to make the test by striking the arm at its fastening with a hammer, and no such test was made, then defendant was negligent of its duty to properly inspect the fastening. Nowotny v. Brewery Assn., 185 Mo.App. 709. (5) The plaintiff and the defendant were not upon an equal footing, with respect to the duty of inspection of the fastening which gave way and released the bracket, because, while the law imposed upon the master the non-delegable duty of making the inspection, the plaintiff was charged only with such defects and dangers as would come to his knowledge in the exercise of ordinary care and in the ordinary course of his work. Clark v. Iron & Foundry Co., 234 Mo. 436; Gutridge v. Mo. Pac. Ry. Co., 105 Mo. 520; Meyers v. Cement Co., 260 S.W. 784; Poynter v. Const. Co., 265 S.W. 841; Hayes v. Ice Co., 282 Mo. 446; Bradley v. Ry. Co., 138 Mo. 293. (6) The rule which exempts the master from his ordinary duties and obligations with respect to safe place, where the place of work is constantly shifting and the dangers thereof transitory, does not apply here, because the use of the upper arm of the bracket, as the place of work in severing the lower arm, was the usual and customary way of doing the work, was known to the master, and the defects and insecurity of the fastening of the upper arm could and would have been discovered by proper inspection. Highfill v. City of Independence, 187 S.W. 801; Anderson v. Const. Co., 178 S.W. 739; Bidwell v. Grubb, 198 Mo.App. 655; Garner v. Bridge Co., 194 S.W. 82; Bradley v. Ry. Co., 138 Mo. 293; Redmon v. Railroad, 225 Mo. 721; Meyers v. Cement Co., 260 S.W. 778.

Davis, C. Higbee and Henwood, CC., concur.


This is an action for personal injuries by the servant against the master, based on various acts of negligence relative to the falling of a bracket, attached to the girder of a viaduct then in the course of being demolished, the horizontal arm of which became detached as the result of disintegration and on which arm plaintiff sat while dissevering the oblique or lower arm with an acetylene torch, whereby he was caused to fall to the ground thirty feet below. The jury returned a verdict for $ 10,000 in plaintiff's favor, defendant appealing from the judgment entered thereon.

The petition alleges in substance that defendant was engaged in wrecking and tearing down a structure in the city of St Louis, known as the Fourteenth Street Viaduct; that plaintiff was an employee of defendant; that while working as such employee on a bracket, the bracket became detached from the girder of said viaduct, so that it fell with plaintiff on it to the ground below, greatly injuring him. The petition comprises six specifications of negligence: (1) Negligently failing to use ordinary care to furnish plaintiff a reasonably safe place in which to work, in that plaintiff was suffered to work on the horizontal upper arm of the bracket, and that the bracket, at its point of connection with the girder, and the girder were old, weak and rusty and likely to collapse and fall with persons working on it and negligently failed to fasten the bracket or furnish a scaffold or other place to stand, and that said place of work was not reasonably safe and was dangerous, all of which defendant knew or by the exercise of ordinary care could have known; (2) defendant negligently directed plaintiff to work on the bracket when it knew or by the exercise of ordinary care could have known of the defect; (3) defendant negligently assured plaintiff of the safety of the bracket as a place to work; (4) defendant negligently failed to inspect the bracket before plaintiff was required to work on it; (5) defend...

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