Hunter v. Busy Bee Candy Company

CourtUnited States State Supreme Court of Missouri
Citation271 S.W. 800,307 Mo. 656
Docket Number24999
PartiesMANUAL HUNTER, Appellant, v. BUSY BEE CANDY COMPANY
Decision Date13 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.

SEDDON, C. Lindsay, C. concurs.

OPINION
SEDDON

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: "Plaintiff states that on or about the 9th day of July, 1920, and for several years prior thereto he was in the employment of the defendant company, engaged in hauling candy by means of a horse and wagon from the defendant's factory in the city of St. Louis, Missouri, to its various retail stores in said city; that in doing said work it frequently became necessary to push or pull out of the way automobiles which had been parked at the street curb in front of the place where plaintiff was required to unload the candy at the defendant's Broadway store; that when it became necessary to push or pull such automobile out of the way and plaintiff was unable, by the exercise of reasonable exertion to do so by himself, it was customary for plaintiff to request assistance from the defendant's manager in charge of said store, who would send a man to help plaintiff; that on the 9th day of July, 1920, plaintiff found it necessary, as aforesaid, in the course of his employment, to request, and he did request, the defendant's manager in charge of said store, to send a man to help plaintiff move an automobile which stood in the place where plaintiff was at said time required to place his wagon in order to unload the load of candy which he then had on his wagon, and was required by the defendant to unload at said place; that defendant's said manager failed and refused to provide the plaintiff with a man to assist him and ordered and required plaintiff to move said automobile by himself. Plaintiff thereupon proceeded to comply with the said order, instructions and directions of the defendant's said foreman or manager, whom he was required by the defendant to obey. And while pushing said automobile out of the way, as he was directed, he suffered a rupture of a blood vessel in his brain as a direct result of the violent exertion occasioned by being required to do said work by himself and without assistance, as aforesaid. Plaintiff states that as a result of said rupture of the blood vessel of his brain the entire right side of his body became paralyzed and has so continued since July 11, 1920. Plaintiff states that his said injury and resultant paralytic condition was caused by and was and is the direct result of the carelessness and negligence of the defendant: First, In failing to provide the plaintiff with another man to help him do the work in which he was injured, as aforesaid, when the defendant knew, or in the exercise of ordinary care could have known, that it was dangerous and unsafe to require plaintiff to do said work by himself, and the defendant knew, or by the exercise of ordinary care could have known, that the plaintiff was unaware of said danger, and the defendant knew, or in the exercise of ordinary care could have known, that it required at least two men to move said automobile with reasonable safety. Second, Plaintiff's said injury and paralytic condition was directly caused by the carelessness and negligence of the defendant in failing to exercise ordinary care to furnish plaintiff with reasonably proper and necessary tools and appliances so he could, with reasonable safety, do the said work which he was required by the defendant to do, and in which he was injured, as aforesaid, in that it failed to provide the plaintiff either with a lever bar or sufficient man power, and if either had been provided plaintiff's said injury would have been avoided. Third, Plaintiff's said injury and paralytic condition was directly caused by the carelessness and negligence of the defendant in ordering plaintiff to do the said work, in which he was injured, as aforesaid, in a way that was not reasonably safe, in that he was required to do it without either a lever bar or sufficient man power to assist him, which the defendant knew, or in the exercise of ordinary care could have known, was a dangerous, improper and unsafe way to require plaintiff to do said work and therefore likely to result in the injury plaintiff suffered, as aforesaid, and the defendant knew, or in the exercise of ordinary care could have known, that the plaintiff was unaware of said danger." 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:

"I am fifty-eight years old. I was employed by the defendant Busy Bee Candy Company in St. Louis in 1920, driving a one-horse wagon, hauling candy from the defendant's factory to its Broadway store and its Sixth and Olive Street store. I was employed in that capacity for six years and six months. Mr. Schottgen, the defendant's general manager gave me orders as to what work I was to do. He is located at the Seventh Street store; that is his headquarters. When I went to the defendant company's Broadway store I was to take orders from Mr. Gibson and Mr. Sid Worth, the manager and assistant manager, so Mr. Schottgen told me. The Broadway store was on the west side of Broadway, fronting east; in front of it, coming up from the basement of the store through the sidewalk, was the elevator. The space through which the elevator would come up through the sidewalk was covered with shutters or doors when the elevator was not in use. When I would come around with a load of candy, and there was...

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