Ganey v. Kansas City
| Decision Date | 30 June 1914 |
| Citation | 168 S.W. 619,259 Mo. 654 |
| Parties | PATRICK H. GANEY v. KANSAS CITY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.
STATEMENT.
Plaintiff was injured when rolling a wheel-barrow, containing a load of moist concrete, on the wall of a water basin, wherein the defendant city was engaged in the work of constructing a water main. The coping, or top space of the wall over which he was pushing the wheelbarrow, was eighteen or twenty inches in width. On the one side of this wall was situated the reservoir or basin, on the other side is was bounded by the earth whose surface came within a few inches of the top. On the land side of the wall and within fourteen inches, a post had been erected to carry electric lights for certain night work, and had been left standing after the completion of the work.
Plaintiff was working under the direction of the foreman and was required to roll the wheelbarrow containing its load of concrete along the coping of the wall to a point beyond the location of the post, and then dump it. A fellow-workman a few feet ahead of plaintiff was engaged in a similar task and succeeded in passing the post in safety, but plaintiff ran his wheelbarrow against the post.
According to the plaintiff's testimony this collision threw him and the barrow into the basin -- a depth of about twenty feet -- and inflicted the injuries sued for.
Defendant's witnesses testified that plaintiff was injured by stepping backwards and falling into the water basin, after having set his wheelbarrow down when it struck the post.
The injury occurred in the daytime of the 10th of May, 1908. The testimony was conflicting as to the distance from the post to the outer edge of the coping and also as to the width of the wheelbarrow -- plaintiff testifying that the post was set in the ground at a distance ranging from two or three to twelve inches. Defendant's witnesses testified that its measured distance was fourteen inches.
The petition alleged the negligent maintenance of the post so close to the wall ("within a foot or less") as to make it an unsafe runway for the wheelbarrow. The answer pleaded contributory negligence and assumption of risk. Plaintiff had judgment for $ 12,000. Defendant appealed and assigned various errors which will be ruled in the opinion.
Reversed and remanded.
A. F Evans, A. F. Smith and Francis M. Hayward for appellant.
(1) The evidence of actual measurements must prevail over mere estimates or guesses, particularly when such measurements are corroborated by the estimates of many other witnesses and by the pleadings themselves. 5 Ency. Ev., p. 643; Perkins v Township, 113 Mich. 379; Jones v. Detroit, 171 Mich. 608; Burrough v. Milwaukee, 110 Wis. 478; Wanta v. Milwaukee, 148 Wis. 295; Ryan v Manhattan Ry. Co., 121 N.Y. 126; Mann v. Phoenix B. & C. Co., 151 Mo.App. 586. (2) No negligence can be attributed to defendant on the uncontroverted facts, for the wall on which plaintiff worked was not unsafe for plaintiff to work upon, and if the erection of the post in the progress of the work, being only temporary, made the work unsafe, it was not negligence on the part of defendant to require plaintiff, with full knowledge of the conditions, to use the wall, and plaintiff assumed such risk and cannot recover. Fugler v. Bothe, 117 Mo. 475; Mathis v. Stock Yards, 185 Mo. 434; Holloran v. Iron & Foundry Co., 133 Mo. 470; Blundell v. Manufacturing Co., 189 Mo. 552; Steinhauser v. Spraul, 127 Mo. 541; Burnes v. Railroad, 129 Mo. 41; Iron Works v. Green, 79 Kan. 558; Casey v. Railroad, 90 Wis. 113; Sullivan v. Manufacturing Co., 113 Mass. 396; Cunningham v. Pierce, 112 App.Div. (N.Y.) 65; Administrator v. Lime & Cement Co., 113 Mo.App. 330; Armour v. Hahn, 111 U.S. 313; Bradley v. Railroad, 138 Mo. 293; West v. Cudahy, 86 Kan. 890; Ballard & Ballard Co. v. Lee, 131 Ky. 412; Foreman v. Railroad, 142 Ky. 62; Grure v. Storey, 40 L. R. A. (N. S.) 832. (3) Respondent was under the undisputed evidence guilty of contributory negligence of the grossest kind, and cannot recover. Slagel v. Lumber Co., 138 Mo.App. 432; Wheat v. St. Louis, 179 Mo. 572; Woodson v. Met. St. Ry., 224 Mo. 685; Devitt v. Railroad, 50 Mo. 302; Ladd v. Street Ry., 180 Mass. 454; McCarthy v. Emerson, 77 App.Div. (N.Y.) 562; Railroad v. Jones, 95 U.S. 439; Pahlan v. Railroad, 122 Mich. 232. (4) The giving of instruction 1 asked by respondent was reversible error for if there could be any doubt in the minds of reasonable men as to the post being dangerously near the wall, then the jury should have had the question submitted to them, whereas the instruction told them that if the post was within twelve inches of the wall, then as a matter of law it was dangerously near the wall. Murphy v. Wabash, 115 Mo. 120; Power v. Wabash, 224 Mo. 1; Huhn v. Railroad, 92 Mo. 450.
Walsh, Aylward & Lee for respondent.
(1) The testimony of estimates as to measurements is admissible as amounting to the statement of a fact and such evidence is entitled to the same weight and value as any other testimony. Stotler v. Railroad, 200 Mo. 123; Railroad v Washington, 49 F.347; Railroad v. Davidson, 76 F.521; Eastman v. Mfg. Co., 44 N.H. 155; Miller v. New York, 93 N.Y.S. 227, 104 A.D. 33; Hacket v. Railroad, 35 N.H. 398; Hames v. Brownlee, 63 Ala. 277; Railroad v. Satterwhite, 19 Tex. Civ. App. 170; Pa. Co. v. Conlan, 101 Ill. 101; Railroad v. Swisher, 53 Ill.App. 417. (2) Plaintiff's injury was the direct result of the negligence of the defendant. The undisputed testimony showed that the post with which plaintiff's barrow collided was erected and located by the defendant in dangerous and unsafe proximity to the wall upon which plaintiff was required to work, thereby forming a dangerous obstruction so that the same was rendered not reasonably safe to work upon. Defendant was in control of the work under the supervision of its foreman and the plaintiff was warranted in relying upon the superior knowledge of the foreman, and his presence at and direction of the work was equivalent to an assurance of safety. Plaintiff, therefore, did not assume the risk of the master's negligence. Charlton v. Railroad, 200 Mo. 433; Curtis v. McNair, 173 Mo. 270; Wendler v. House Fur. Co., 165 Mo. 527; Murphy v. Railroad, 115 Mo. 111; George v. Railroad, 225 Mo. 411; Young v. Oil Co., 185 Mo. 665; Bradley v. Railroad, 138 Mo. 302; Smith v. Coal Co., 75 Mo.App. 180; Hamman v. Coal & Coke Co., 156 Mo. 232; Erwin v. Telephone Co., 173 Mo.App. 535; Doyle v. Trust Co., 140 Mo. 1. The right of the master to do his work in his own way is qualified by the rule that the master must remain within the boundaries of reasonable care. Erwin v. Telephone Co., 173 Mo.App. 536; Mack v. Railroad, 123 Mo.App. 536; Brandt v. Brewing Co., 159 Mo.App. 568; Jarrel v. Coal Co., 154 Mo.App. 558. The evidence showed the post had been up eleven days and had not been in use for several days prior to the injury. It was serving no useful purpose and although defendant knew of its dangerous and unsafe proximity to the wall and that it formed a dangerous obstruction to workmen using the wall it failed and omitted to remove the same. The foreman of the plaintiff directed him what to do, where and how to do it, was present while the work was being done, and plaintiff had a right to rely upon the fact that the master had performed his duty and that the place and manner of doing the work in conformity with orders was reasonably safe, although the danger was temporary and the place shifting. Under the evidence the defendant was unquestionably guilty of negligence. Erwin v. Telephone Co., 173 Mo.App. 536; Corby v. Telephone Co., 231 Mo. 417; Jewell v. Nut & Bolt Co., 231 Mo. 176; Jarrell v. Coal Co., 154 Mo.App. 552; Smith v. Fordyce, 190 Mo. 28; Phippin v. Railroad, 196 Mo. 347; Dakan v. Chase, 197 Mo. 267; Brady v. Railroad, 206 Mo. 509; Wendler v. Fur. Co., 165 Mo. 527; Smith v. Kansas City, 125 Mo.App. 150; Bloomfield v. Wooster, 118 Mo.App. 259; Hendler v. Stove & Range Co., 136 Mo. 3. (3) Plaintiff was not guilty of contributory negligence. The question of contributory negligence is generally a question for the jury and unless the danger is so glaring and imminent an appellate court will not interfere with the jury's finding on that fact. Young v. Oil Co., 185 Mo. 666; Butz v. Const. Co., 199 Mo. 287; Garacai v. Const. Co., 124 Mo.App. 719; Shortel v. St. Joseph, 104 Mo. 114; Mahoney v. Railroad, 104 Mass. 73; Shore v. Bridge Co., 111 Mo.App. 291. Plaintiff had a right to assume that defendant had performed its duty and had placed the post a reasonably safe distance from the wall until he had information to the contrary, for it was no part of his duty to examine the post and see how close it was to the wall. Devlin v. Railroad, 87 Mo. 545; Waldhier v. Railroad, 87 Mo. 37; Johnson v. Railroad, 41 Am. & Eng. R. R. Cases (Minn.), 293; Railroad v. Davis, 92 Ala. 300; Murphy v. Railroad, 115 Mo. 111. (4) Plaintiff's instruction numbered 1 was properly given. It required the jury to find that the post was negligently permitted to be and remain in dangerous and unsafe proximity to the wall and it did not invade the province of the jury nor assume any facts. Blankenship v. Hughes P. & G. Co., 154 Mo.App. 491; Geary v. Railroad, 138 Mo. 251; Dammann v. St. Louis, 152 Mo. 186; Brady v. Railroad, 206 Mo. 509; Phippin v. Railroad, 196 Mo. 321; Henderson v. Kansas City, 177 Mo. 490; Dawson v. Railroad, 102 Mo.App. 284. The most that can be said of plaintiff's instruction is that plaintiff assumed an unnecessary burden and it is well settled that defendant cannot complain under such circumstances. Prewitt v. Railroad, 134 Mo. 615; Herrington v. Sedalia, 98 Mo. 585; Brooks v....
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