Hunter v. Busy Bee Candy Company
Court | United States State Supreme Court of Missouri |
Citation | 271 S.W. 800,307 Mo. 656 |
Docket Number | 24999 |
Parties | MANUAL HUNTER, Appellant, v. BUSY BEE CANDY COMPANY |
Decision Date | 13 April 1925 |
Appeal from St. Louis City Circuit Court; Hon. George E Mix, Judge.
Affirmed.
Wm R. Schneider for appellant.
(1) The servant does not assume risks of his employment that are caused by the master's negligence. Williams v Prior, 272 Mo. 613; Trill v. K. C. So. Ry., 216 S.W. 572; Walsh v. Union Quarry Const. Co., 223 S.W. 1085. (2) The only way a servant can be denied recovery because of danger or risks created by the master's negligence is by doing work at the behest of the master the danger from which is so great and obviously apparent as to threaten immediate and certain danger. It then becomes a question for the jury whether the danger was so imminent and obvious that the servant was guilty of contributory negligence in doing the work. Patrum v. Ry. Co., 259 Mo. 109; Bowman v. Elec. Light Co., 213 S.W. 161. But unless the danger was so apparent that no reasonably prudent man would think the work could be done safely, he should not be barred from recovery on the ground of contributory negligence. Bowman v. Elec. Light Co., 213 S.W. 161; Thorp v. Mo. Pac. Ry. Co., 89 Mo. 650; Stoddard v. Railroad Co., 65 Mo. 514; Trill v. K. C. So. Ry., 216 S.W. 572. (3) It is the duty of the master to exercise ordinary care to provide his servants with reasonably sufficient help to enable them to do with reasonable safety to themselves the work which the master requires of them. Meily v. Railroad, 215 Mo. 567; Lavecke v. Curtis Mfg. Co., 197 Mo.App. 273; Haviland v. Railroad Co., 172 Mo. 106; Trill v. K. C. So. Ry., 216 S.W. 572. (4) Paralysis frequently results from violent exertion and should have been forseen by the master whose order was an implied assurance of safety to the servant. Fowler v. Bottling Co., 175 A.D. 224, 161 N.Y.S. 535; St. Clair v. Meyer Music House, 178 N.W. 705; La Veck v. Park Davis Co., 190 Mich. 604; McInnes v. Dunsnier & Jackson, Ltd., 1 B. W. C. C. 226; State ex rel. Puhlmann v. Dist. Ct., 137 Minn. 30. (5) The liability of a master charged with negligence does not depend upon the question whether with the exercise of reasonable prudence he could or ought to have foreseen the very injury complained of; but he may be held liable for anything which after the injury is complete appears to have been a natural and probable consequence of his act or omission. Washburn v. Laclede Gas Light Co., 213 S.W. 414; Smith v. Greer, 257 S.W. 829; Dean v. Ry. Co., 199 Mo. 411; Buckner v. Horse & Mule Co., 221 Mo. 710.
Lewis & Rice, Percy Werner and Foristel, Mudd, Hezel & Habenicht for respondent.
(1) The failure to furnish the plaintiff assistance in his attempt to remove the automobile does not constitute negligence on the part of the defendant. Haviland v. Railroad, 172 Mo. 109; Leitner v. Grieb, 104 Mo.App. 173; Petrilli v. Swift & Co., 260 S.W. 516; Lively v. Railroad, 225 P. 103; Kampeen v. Ry. Co., 189 N.W. 123; Hines v. Cox, 232 S.W. 373; Williams v. Ry. Co., 207 Ill.App. 517; Sandy Valley Railroad Co. v. Tackitt, 167 Ky. 756; Stenvog v. Ry. Co., 108 Minn. 199; Worlds v. Railroad Co., 99 Ga. 283; Haywood v. Railroad Co., 38 Tex. Civ. App. 101. (2) But such failure, even if negligent, was not, in law, the proximate cause of plaintiff's injury. State ex rel. v. Ellison, 271 Mo. 463; Washburn v. Gas Light Co., 214 S.W. 410, 284 Mo. 181; State ex rel. v. Ellison, 271 Mo. 463; De Moos v. Rys. Co., 296 Mo. 526.
Suit for damages for personal injuries alleged to have been sustained by plaintiff while in defendant's employment.
The substantive allegations of the petition are these: The petition prays damages in the sum of $ 65,000.
Defendant's answer was a general denial and the following special defense: "Further answering, defendant states that if the plaintiff attempted to move an automobile as stated in his petition, and if plaintiff sustained injuries while so doing, or as a direct result thereof, the same directly and proximately resulted from negligence and carelessness of plaintiff contributing thereto, in this, that the plaintiff negligently attempted to push and move said automobile, and negligently pushed said automobile with too great force and effort, and negligently failed to refrain from straining himself, and defendant further states that the plaintiff fully and knowingly assumed whatever risk and danger there was in doing such work as aforesaid."
The reply was a general denial.
The facts relied upon by plaintiff for recovery may be best stated in his own words. On direct examination, he testified:
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