Hester v. Jacob Dold Packing Company
| Decision Date | 03 March 1902 |
| Citation | 75 S.W. 695,95 Mo.App. 16 |
| Parties | DANIEL HESTER, Respondent, v. JACOB DOLD PACKING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
[Copyrighted Material Omitted]
Original Opinion of March 3, 1902, Reported at: 95 Mo.App. 16.
Motion overruled.
ON MOTION FOR REHEARING.
The trial court, by instruction numbered two, informed the jury that plaintiff had a right to assume that defendant had furnished lumber of a quality to make the use of it by plaintiff reasonably safe, unless it was so glaringly and obviously dangerous that a man of ordinary prudence would refuse to walk upon it. Defendant asks a rehearing on account of our not having considered that instruction.
Defendant's position is based upon what it conceives to be the testimony of plaintiff himself; it being contended that he knew the lumber was unfit. And that presumptions or assumptions should be indulged only in cases where the complaining party was not shown to have been guilty of contributory negligence, or was not shown to have known of the defective place where he worked. It is quite true that one has no right to assume a thing to exist which he knows does not. As, for instance, he has no right to assume that a street railway company had bells on its mules which were drawing an approaching car, when he knew they had not. Lynch v. St. Railway, 112 Mo. 420. The objectionable instruction in that case put the injured party's right to assume there were bells on the mules without regard to whether he, in exercise of ordinary care, might have known there were not. The instruction in that case, as written, left the injured party at reckless liberty to assume there were bells when the least attention on his part would have disclosed there were not. In other words, the instruction was half complete. As said by the court in that case, it should have stated "that a person himself in the exercise of ordinary care or prudence has the right to assume that others will obey the law and to act on that belief" (p. 437). That is, the party, himself in exercise of ordinary care, may assume that the other party will perform, or has performed his duty.
In this case the instruction objected to was complete in itself. It states the law, for it embraces the respective positions of the contending parties. It is the law that plaintiff had the right to assume that defendant had performed its duty in furnishing a reasonably safe scaffold for him to walk upon unless its defect was so obviously dangerous as to deter an ordinarily prudent man from going upon it. If it was of the latter character, then plaintiff had no right to assume defendant had performed its duty, for he knew to the contrary. The testimony given by plaintiff was that he was a carpenter of long experience, that he was acquainted with lumber, its use, character and relative strength, as well as suitableness for different kinds of use. That he was...
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