Henry v. John O'Brien Boiler Works Co.
| Decision Date | 05 December 1910 |
| Citation | 132 S.W. 310,151 Mo.App. 591 |
| Parties | WILLIAM F. HENRY, Respondent, v. JOHN O'BRIEN BOILER WORKS COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
Judgment reversed.
Percy Werner for appellant.
(1) The duty of the master as to furnishing a safe place is this: It is his duty to exercise ordinary care to furnish the employee a reasonably safe place in which the employee, by the exercise of ordinary care on his own part, can perform the work assigned him with a reasonable degree of safety to himself, subject only to the risks ordinarily incident to the employment. Ziegenmeyer v. Goetz Co., 113 Mo.App 330; Goransson v. Mfg. Co., 186 Mo. 300; Purcell v. Shoe Co., 187 Mo. 276; Sutherland v. Lbr Co., 130 S.W. 40; Spencer v. Bruner, 126 Mo.App. 101; Wendell v. Railroad, 100 Mo.App. 556; Livengood v. Lead & Zinc Co., 179 Mo. 238. (2) There being nothing in the evidence to support the averments of the petition, and all the evidence on the point having been introduced by the plaintiff himself, the question is one of law for the court. Fletcher v. Railroad, 64 Mo. 488. (3) The sheet iron-worker and plaintiff, his helper, were fellow-servants. English v. Shoe Co., 122 S.W. 747; Rodgers v. Schiele, 127 S.W. 618; Smith v. Light & Power Co., 128 S.W. 779; Dickerson v. Jenkins, 128 S.W. 281; McIntyre v. Tebbetts, 140 Mo.App. 116.
Daniel Dillon for respondent.
(1) Where a petition is not demurred to, and no objection to its sufficiency is made until after trial begun, every reasonable intendment will be made in favor of the petition. Smith v. Railroad, 129 Mo.App. 422; Nairn v. Railroad, 126 Mo.App. 711; State ex rel. v. Delaney, 122 Mo.App. 243; McKinney v. Northcutt, 114 Mo.App. 161; Dodge v. Coal & Coke Co., 115 Mo.App. 507. (2) That it is the duty of the master to furnish the servant a reasonably safe place to work and that the master cannot delegate this duty to any one else and escape liability is too well settled in this state to admit of discussion. Herdler v. Range Co., 136 Mo. 16; Hamman v. Coal & Coke Co., 145 Mo. 243; Doyle v. Trust Co., 140 Mo. 15; Koerner v. Car Co., 209 Mo. 160; Reichla v. Gruensfelder, 52 Mo.App. 57; Struebe v. Iron & F. Co., 85 Mo.App. 646; Irmer v. Brewing Co., 69 Mo.App. 24; Sambos v. Railroad, 134 Mo.App. 460; English v. Shoe Co., 122 S.W. 149; Burkhard v. Rope Co., 217 Mo. 482. (3) That the dual capacity doctrine is the law of this state is no longer a disputable question. Rigsby v. Oil Well Supply Co., 115 Mo.App. 313; Bane v. Irwin, 172 Mo. 318; Fogarty v. Transit Co., 180 Mo. 511; Holweg v. Telephone Co., 195 Mo. 149; Russ v. Railroad, 112 Mo. 52; Bien v. Transit Co., 108 Mo.App. 399; Miller v. Railroad, 109 Mo. 355. (4) The rule in Missouri is that the servant does not assume risks arising from the negligence of the master. Yongue v. Railroad, 133 Mo.App. 152; Mack v. Railroad, 125 Mo.App. 537; Obermeyer v. Chair Co., 120 Mo.App. 73; Cole v. Transit Co., 183 Mo. 94; Wendler v. Fur. Co., 165 Mo. 537; Curtis v. McNair, 173 Mo. 279; Kirby v. Coal & Coke Co., 127 Mo.App. 599; Stafford v. Adams, 113 Mo.App. 723; Butts v. Construction Co., 199 Mo. 286.
Action for damages for injuries received by plaintiff while in the employ of defendant as a sheet iron-worker's helper, caused by a piece of sheet iron or steel striking plaintiff in the eye as a result of which the eye was put out. Judgment for plaintiff for $ 3415, and defendant has appealed.
The errors assigned necessary to be noticed are: First, that the petition is insufficient to support the judgment; second, that a demurrer to the testimony should have been sustained.
The ground of plaintiff's cause of action is that the defendant had failed in its duty to furnish him a reasonably safe place to work. The allegations of the petition are, in substance, that plaintiff was employed by defendant corporation as a helper to a sheet iron-worker, and was directed to do such work as the sheet iron-worker, whose helper he was, should order him to do. That he was ordered by the sheet iron-worker to assume a position and stand in a place that was dangerous, and by reason thereof he was injured. That the sheet iron-worker who gave the order knew, or by the exercise of ordinary care could have known, that he was placing plaintiff in a position of danger.
The objection to this petition is that it does not allege that the acts of the sheet iron-worker were negligently done. The pleading would have been in better form had this been done. It is, however, the duty of the master to use ordinary care to furnish his servant a reasonably safe place to work, and the allegation that plaintiff was directed to obey the orders of the sheet iron-worker made the sheet iron-worker a vice-principal, and the master was, therefore, liable for his acts in ordering plaintiff where to stand and what to do. [Miller v. Missouri Pacific Ry. Co., 109 Mo. 350, 19 S.W. 58; English v. Roberts, J. & R. Shoe Co., 145 Mo.App. 439, 122 S.W. 747.] And since the petition alleged that the sheet iron-worker knew, or by the exercise of ordinary care, could have known that the place in which plaintiff was ordered to stand to do his work was a dangerous one, it was equivalent to an allegation that the order was negligently given, and we think the petition good after verdict.
It is next contended that the demurrer to the testimony should have been sustained. Plaintiff was a helper to a sheet iron-worker, and, at the time of the accident, they were engaged in chipping off a corner of what was called a "breeching." This breeching was made of sheet iron or sheet steel and was about three feet high, three feet long and one foot wide, and was used to connect the boiler and smoke stack. This breeching was standing on the floor, and plaintiff was directed to stand on one side and hold what was called a "header" against one side of the sheet iron while the sheet iron-worker stood on the other side, and with hammer and chisel chipped off the portion to be trimmed. While they were engaged in this work a piece of the iron chipped off and flew into the plaintiff's eye and put it out. If the sheet iron-worker,...
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