Fulwider v. Trenton Gas, Light & Power Company

• Decision Date: 25 February 1909
• Citation: 116 S.W. 508,216 Mo. 582
• Parties: BERTHA MAY FULWIDER and EVA MYRTLE FULWIDER et al., Minors, by HOMER HALL, Curator, Appellants, v. TRENTON GAS, LIGHT & POWER COMPANY, THOMAS F. FULKERSON and JAMES B. CARNES
• Court: Missouri Supreme Court

116 S.W. 508

216 Mo. 582

BERTHA MAY FULWIDER and EVA MYRTLE FULWIDER et al., Minors, by HOMER HALL, Curator, Appellants, v. TRENTON GAS, LIGHT & POWER COMPANY, THOMAS F. FULKERSON and JAMES B. CARNES

Supreme Court of Missouri, First Division

February 25, 1909

Appeal from Grundy Circuit Court. -- Hon. G. W. Wanamaker, Judge.

Affirmed.

Geo. A Adams and Hall & Hall for appellants.

(1) It was the duty of defendants to construct guards around the belts and other machinery to protect their employees while operating the same, and their failure to do so rendered them liable for the damages resulting from such neglect and failure. R. S. 1899, sec. 6433; Colliott v. Am. Mfg Co., 71 Mo.App. 170; Blair v. Heibel, 103 Mo.App. 633; Stafford v. Adams, 113 Mo.App. 721; Morgan v. Hinge Mfg. Co., 120 Mo.App. 590; Millsap v. Beggs, 122 Mo.App. 6; Lore v. Am Mfg. Co., 160 Mo. 621; Henderson v. Kansas City, 177 Mo. 492. "The purpose of the statute is to provide for the safety of the employees in a mode which the common law does not." Colliott v. Am. Mfg. Co., 71 Mo.App. 171; Blair v. Heibel, 103 Mo.App. 634; Millsap v. Beggs, 122 Mo.App. 10. (2) Defendants were also guilty of negligence in leaving the floor out and a hole between the engine and the belt where deceased had to stand while stopping the engine, and with nothing but a narrow six-inch board to stand on. It was the duty of defendants to furnish deceased a reasonably safe place to work. Fugler v. Bothe, 43 Mo.App. 44; Zellars v. Missouri Water & Light Co., 92 Mo.App. 117; Parsons v. Pack. Co., 96 Mo.App. 382; Carter v. Baldwin, 107 Mo.App. 228; Dayharsh v. Railroad, 103 Mo. 570; Herdler v. Stove & Range Co., 136 Mo. 15; Doyle v. Trust Co., 140 Mo. 18; Minnier v. Railroad, 167 Mo. 112; Smith v. Peninsular Car Works (60 Mich. 501), 1 Am. St. Rep. 542. (3) Deceased in entering the employ of defendants did not assume the risk incident to the defendants' failure to construct guards to protect their employees from the danger from the exposed machinery; he did not assume the risk of defendants' negligence. Pauck v. Beef & Provision Co., 159 Mo. 477; Stafford v. Adams, 113 Mo.App. 717. (4) While the evidence is that deceased ran an engine in a mill, and fired a railroad engine, and that the engine he was running at the time, the machinery and surroundings were all open and obvious to him, the undisputed evidence is that he had never run, and had no experience whatever in running, an electric light plant such as that, and there is no evidence that he was instructed how to run, start or stop this engine, or had ever seen it started or stopped. He was wholly inexperienced in the particular duty engaged in at the time of his death. The law made it the duty of defendants to warn him of the danger in stopping the engine too soon after the steam had been shut off and without the use of the block. Their failure to do so was actionable negligence. Nairn v. Nat. Bis. Co., 120 Mo.App. 147; Nicholds v. Plate Glass Co., 126 Mo. 64; Dean v. Woodenware Works, 106 Mo.App. 180. (5) The burden was upon defendants to prove that deceased was guilty of contributory negligence. Buesching v. Gaslight Co., 73 Mo. 219; Parsons v. Railroad, 94 Mo.App. 293; Mitchell v. City of Clinton, 93 Mo. 158; Bluedorn v. Railroad, 108 Mo. 448. (6) The question of the negligence of deceased under all the circumstances was a question for the jury as the triers of the facts, and not a matter of law for the court. Hamilton v. Mining Co., 108 Mo. 376; Henderson v. Kansas City, 177 Mo. 493; Montgomery v. Railroad, 181 Mo. 477; Nicholds v. Plate Glass Co., 126 Mo. 65; Kane v. Railroad, 100 Ill.App. 181; Hober v. W. P. Nelson Co., 101 Ill.App. 336.

E. M. Harber, A. G. Knight, H. C. Smith and E. R. Sheetz for respondents.

(1) The court properly sustained defendants' demurrer to the evidence. Although plaintiffs allege in their petition that Mary Alice Fulwider, the mother of plaintiffs, had failed to institute her action for the death of her deceased husband in the time provided by law, they wholly failed to prove such allegation, in that no evidence whatever concerning this essential fact was adduced, and, hence, the jurisdiction of the trial court was defeated. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Sparks v. Railroad, 31 Mo.App. 114; Packard v. Railroad, 181 Mo. 421; Poor v. Watson, 92 Mo.App. 89; McNamara v. Slavens, 76 Mo. 329; Hamilton v. Railroad, 39 Kan. 56; Case v. Cordell Zinc & Lead Mining Co., 103 Mo.App. 478. (2) In considering the question of contributory negligence the fact that deceased had been working only a short time before receiving his injuries is immaterial. Smith v. Box Co., 193 Mo. 734; Millsap v. Beggs, 122 Mo.App. 7. (3) The evidence failed to show that defendants did not furnish deceased a reasonably safe place to work. Witness Hannan testified that when deceased applied the rocker bar he was standing on a perfectly solid floor of lumber and that it was comparatively a new floor. However, if deceased had been standing on a narrow six-inch board, as asserted in appellant's statement and brief, he would be held to have assumed the risk under the rule announced in Fugler v. Boothe, 117 Mo. 475. (4) On accepting employment a servant assumes all the ordinary and usual risks and perils incident thereto, whether it be dangerous or otherwise. Haviland v. Railroad, 172 Mo. 106; Beasley v. Transfer Co., 148 Mo. 413; Bradley v. Railroad, 138 Mo. 293; Winkler v. Basket Co., 137 Mo. 394; Smith v. Hammond Packing Co., 111 Mo.App. 13; Depuy v. Railroad, 110 Mo.App. 110; Nash v. Dowling, 93 Mo.App. 156; Halliburton v. Railroad, 58 Mo.App. 27; Roberts v. Tel. Co., 166 Mo. 370. It is not negligence for a master to set his servant to a piece of work where such servant is of sufficient age and intelligence to appreciate the risk which is both patent and incident to the particular work. Evans v. Mfg. Co., 5 Misc. (N. Y.) 330, 25 N.Y.S. 509. If the servant has a general knowledge of defects sufficient to charge him with knowledge of danger, he assumes the risk although he may not know of the particular defects which cause the injury. 26 Cyc. 1202. The servant need not have absolute knowledge of the risks, if they are such that an ordinarily prudent man under the circumstances could by reasonable diligence have discovered them. Clark v. Railroad, 179 Mo. 66; Lucey v. Hannibal Oil Co., 129 Mo. 32; Steinhauser v. Spraul, 127 Mo. 541; Gibson v. Railroad, 46 Mo. 163; Beymer v. Hammond Packing Co., 106 Mo.App. 726; Harrington v. Railroad, 104 Mo.App. 663; Beckman v. Anheuser-Busch Brewing Assn., 98 Mo.App. 555; Cothron v. Cudahy Packing Co., 98 Mo.App. 343; Franklin v. Railroad, 97 Mo.App. 473.

LAMM P. J. Woodson, J., not sitting.

OPINION

LAMM, P. J.

Suing for the wrongful death of their father and putting in their evidence in that behalf, an adverse verdict was coerced by an instruction in the nature of a demurrer at the close of their case, and plaintiffs appeal.

The petition counts on two theories. One is that defendant corporation, Fulkerson and Carnes were running and operating an electric light, gas and power plant in the city of Trenton and used in their said business certain dangerous machinery, consisting of engines, belts, drums, shaftings, gearing, etc., which machinery was negligently left unfenced, whereby J. E. Fulwider, father of plaintiffs and an employee of defendants, was killed. That is to say, by the first theory of the case a duty was raised to fence dangerous machinery by statute and that there was an actionable breach of this duty, resulting in Mr. Fulwider's death. The other theory is that defendants owed a common law duty to Mr. Fulwider to furnish him a reasonably safe place in which to work and breached such duty, in that they (to quote from the petition) "failed and neglected to furnish their said employees a reasonably safe and suitable place in which to work, and carelessly and negligently suffered and permitted the floors in the building in which said machinery and other appliances above mentioned were situated and where their said employees while engaged in running and operating the same had to work, to become rough and uneven with boards and timbers nailed across and over the same and permitted the same to become and remain covered with grease and to become and remain unsafe, and failed and neglected, carelessly and negligently, to furnish sufficient lights so as to enable their said employees to perform their said work with reasonable safety."

The petition further charges as follows:

"Plaintiffs further state that on said 27th day of January, 1904, their said father, J. E. Fulwider, was in the employ of the defendants assisting in running, operating and working about said plant and establishment and the said shafting, belts, gearing, drums, engines and other machinery and appliances therein, and that while he was so engaged and employed in the discharge and performance of his duties, and without fault or negligence on his part, but by reason of the said failure and neglect of the defendants to safely and securely guard and protect the said engines, belts, shafting, drums and other machinery and appliances as aforesaid, and by reason of the said failure and neglect of the said defendants to furnish their said deceased employees a reasonably safe and suitable place in which to work and sufficient lamps and lights to enable him to see in doing his said work, the said J. E. Fulwider was unable to see so as to discharge his said duties in safety and slipped or stumbled upon said rough, uneven and greasy boards and floor and thereby and by reason thereof and by reason of the said failure and neglect of defendants to properly guard, enclose and protect said machinery,...