Garaci v. Hill-O'Meara Const. Co.

• Decision Date: 14 May 1907
• Citation: 102 S.W. 594,124 Mo. App. 709
• Parties: GARACI v. HILL-O'MEARA CONST. CO.
• Court: Missouri Court of Appeals

102 S.W. 594

124 Mo. A. 709

GARACI v. HILL-O'MEARA CONST. CO.

St. Louis Court of Appeals. Missouri.

May 14, 1907.

1. MASTER AND SERVANT — INJURIES TO SERVANT — ASSUMPTION OF RISK — LIMITATION OF DOCTRINE.

Under the doctrine of assumption of risk, as settled by the decisions of Missouri, the only risks assumed by a servant are those ordinarily incident to the employment, and not those arising from the master's negligence.

2. SAME — CONTRIBUTORY NEGLIGENCE — KNOWLEDGE OF DANGER.

The mere fact of a servant's knowledge that there is some danger in the place of employment is not sufficient to defeat his right of recovery for an injury, unless such knowledge discloses imminent and immediate danger which a reasonably prudent person should know could not be avoided by the exercise of ordinary care.

3. SAME — QUESTION FOR JURY.

Unless the danger at the place of a servant's employment is so glaring as to threaten immediate injury, the question of his contributory negligence, in an action against the master for injuries, is for the jury.

4. SAME — INSTRUCTIONS.

Plaintiff and other employés were directed by defendant's foreman to turn a heavy derrick lying on a sloping bank, and while doing so the derrick slipped and fell upon plaintiff, injuring him. It appeared that the proper way of turning the derrick was to block or stake it or to dig holes in which the projecting timbers could rest, so as to prevent it from slipping while being turned over, and that these precautions were not taken. Held, that the court properly instructed that if it was necessary that the derrick should be so blocked and fastened to prevent it from slipping while being turned, and that this was not done, and plaintiff, while exercising ordinary care for his own safety, was injured, he might recover.

5. SAME — ASSUMPTION OF RISK.

In order to preclude a servant from recovering for injuries resulting from a defective condition of machinery or appliances, under the doctrine of assumption of risk as it formerly prevailed in Missouri, it is not sufficient that he knew of the defective condition, but it must also appear that he understood and appreciated the danger thereof.

6. SAME — INSTRUCTIONS.

In an action by a servant for injuries received through the falling of a derrick on him, which he was endeavoring to turn, an instruction based on the theory that there was some complaint of negligence in the character of the derrick supplied and the manner of its operation, and charging that if it was the same kind of a derrick supplied and operated in the same manner as a derrick ordinarily supplied, and operated by reasonable and prudent men, defendant was not liable, was properly refused; the injury alleged resulting from the turning, not from the operation, of the derrick.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Antonio Garaci against the Hill-O'Meara Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Collins & Chappell, for appellant. A. R. Taylor, for respondent.

NORTONI, J.

The suit is for personal injuries inflicted upon the plaintiff, a laborer, while in the defendant's employ, by means of a heavy derrick falling upon and breaking his leg. Plaintiff recovered in the court below, and defendant appeals.

The material facts in proof are: "Defendant construction company was engaged in the prosecution of its business on the levee of the Mississippi river near the foot of Biddle street, in the city of St. Louis. It owned a large derrick, which lay on the ground near the river, which derrick its foreman desired to overturn. The derrick was a massive structure of great weight, about 30 feet in length. Its side pieces or uprights were timbers about 10 by 12 inches in diameter. It was 10 or 12 feet wide at the bottom, and about 4 feet wide at the top. There was a heavy cross-piece fastened across the bottom and one across the top of the upright timbers. These two cross-pieces projected about 12 inches out on each side of the derrick proper, and there were numerous intermediate cross-pieces thereon as well. The latter did not project, however. The derrick lay upon the river bank near to and parallel with the river; the lower or larger end being to the north and the top end, toward the south. The ground was frozen and slick and sloped toward the river. The defendant desired to overturn the derrick on its side to the east or toward the river, which involved raising it from the west side and tipping it down-grade toward the river. All of the evidence introduced tends to prove that the usual, customary, and a safe way to accomplish this was to drive stakes or crowbars at either end of the derrick and on the side thereof nearest the river to prevent it from slipping as the men raised it from the opposite side, and also to remove the earth at either end and dig holes where the projecting cross-pieces were, so that, in the operation of turning, the protruding ends of the two cross-pieces mentioned would be beneath the surface of the ground, for to do so avoided their operating to raise the side timbers of the derrick from the earth, whereby the lift was rendered greater, and the possibilities of the derrick slipping more probable, and consequently more dangerous. The defendant's foreman in charge called the plaintiff and probably 10 other laborers to assist, and directed them to take hold along the west side of the derrick lying flat on the ground, as it was, and to overturn it downgrade toward the river. Plaintiff had never worked on or about a derrick, and was unfamiliar with it, as he was with the usual and customary manner of overturning the same. He and his several witnesses say that the defendant failed to provide stakes or crowbars or other supports adjacent to the opposite side thereof, and failed to remove the earth to permit the protruding cross-pieces to sink beneath the surface, as indicated, and therefore, while the several men, under the immediate direction of the foreman, were in the act of lifting and overturning the same, the protruding cross-pieces slipped on the frozen incline of the levee or river bank toward the river about the time they had lifted it a little more than waist high, from which slipping the derrick became unmanageable and fell back upon this plaintiff, breaking his leg below the knee, which injury necessitated the amputation of the limb, which was done; that the slipping of the derrick was occasioned by reason of the foreman's failure to provide holes underneath the protruding cross-pieces and his failure to provide stakes or other sufficient fastenings to prevent slipping of the derrick on the frozen ground. Defendant's witnesses, as well as one or two of plaintiff's witnesses, testified that the usual, customary, and safe way to overturn the derrick was to dig holes and drive stakes or crowbars against the side rail, as mentioned. Plaintiff himself, however, knew nothing of this precaution, inasmuch as he had never been engaged in a like undertaking, nor about a derrick. The only conflict in the evidence is: The defendant's foreman and assistant foreman testified that both of these precautions had been taken by them; that they had removed the earth beneath the ends of the protruding cross-pieces, and had driven crowbars into the ground as stakes to prevent the slipping; that the derrick in fact did not slip at all, but, on the contrary, the plaintiff's injury was occasioned by several of his fellow employés quitting the lift or changing places at an inopportune moment, which rendered it impossible for the others to sustain their effort, in consequence of which the fall and his resulting injury occurred. The negligence declared upon in the petition is the order and direction by the defendant's foreman to plaintiff and others to overturn the derrick without first causing the same to be blocked or sufficiently fastened to prevent its slipping while being raised and overturned.

The court very properly refused to peremptorily direct a verdict for the defendant, and submitted the cause to the jury on instructions, the first of which, given at the request of the plaintiff, is as follows: "If the jury find from the evidence in this case that, on the 13th day of February, 1902, the defendant was operating the derrick and appliances mentioned in the evidence at or near the levee and Biddle street, in the city of St. Louis; and if the jury find from the evidence that on said day the plaintiff was in the service of the defendant, as a laborer engaged in assisting in the work of raising the derrick, mentioned in the evidence, and that whilst so engaged said derrick fell upon and injured the plaintiff as mentioned in the evidence; and if the jury find from the evidence that, as said derrick was situated, it was necessary that said derrick should be blocked or fastened to prevent it from slipping and injuring the plaintiff whilst it was being so raised; and if the jury find from the evidence that said derrick was not blocked or fastened whilst it was being raised, and that thereby said derrick was so caused to fall and injure the plaintiff; and if the jury find from the evidence that defendant's foreman in charge of said work for defendant was present directing the manner of doing said work, and directed said work to be done without being blocked or fastened to prevent its falling and injuring the plaintiff; and if the jury find from the evidence that defendant's foreman, so in charge of said work, did not exercise ordinary care in so directing said work to be done, without having said derrick blocked or fastened, and thereby directly contributed to cause said derrick to fall upon and injure the plaintiff, as mentioned in the evidence; and if the jury find from the evidence that the plaintiff was exercising ordinary care at the time of his injury — then plaintiff is entitled to recover, although the jury should believe from the evidence that other servants of ...