Huskey v. Heine Safety Boiler Co.

• Decision Date: 26 January 1916
• Parties: ERASTUS HUSKEY, Appellant, v. HEINE SAFETY BOILER COMPANY, a Corporation, Respondent
• Court: Missouri Court of Appeals

181 S.W. 1041

192 Mo.App. 370

ERASTUS HUSKEY, Appellant, v. HEINE SAFETY BOILER COMPANY, a Corporation, Respondent

Court of Appeals of Missouri, Springfield

January 26, 1916

Appeal from Butler County Circuit Court.--Hon. J. P. Foard, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Abington & Phillips for appellant.

Leslie C. Green and Sheppard & Sheppard for respondent.

FARRINGTON J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

--This is an appeal by the plaintiff in a damage suit for personal injuries. At the close of plaintiff's evidence the court at the request of the defendant directed a verdict in its favor.

The case is here on a second appeal. We reversed the judgment and remanded the cause on the former appeal (187 Mo.App. 438, 173 S.W. 16), and we now refer to our opinion in that appeal for a statement of the facts now before us, the additions thereto being pointed out in the course of the present opinion. When the cause was here before we reversed the judgment because the case had been tried on the theory that it was the duty of the defendant to furnish a platform on which the plaintiff could have stood in simply putting a bolt in a hole some sixteen feet above the ground in the side of a metal smokestack, as it appeared from the evidence at that trial that it was but a temporary employment done in the course of the construction of the stack,--that the safe place rule did not apply and that the facts brought that trial within one of the exceptions to such rule. It did appear however, in the former record before us that there was evidence tending to show that the defendant had ordered a platform to be built at this particular place for the purpose of furnishing a place for workmen to stand while fastening the angle bars and hood leading from the boiler room onto this smokestack, and that this platform would have been completed within a short time, and that it was not necessary that the isolated task of putting the bolt in the hole at the time the plaintiff was ordered to do so should have been performed at the time the plaintiff was ordered to do it, and upon this evidence we reversed the judgment and remanded the cause to be tried (as will be seen by the last paragraph in our opinion), on the theory that if the defendant sent the plaintiff unnecessarily into a dangerous and hazardous place when by waiting a very short time a platform would have been erected which would have made the employment of putting the bolt in the hole practically without danger, then it would be a question for the jury to determine whether a reasonably prudent and careful master would, under the circumstances, have ordered the plaintiff to do what he did do at the time he did it.

In the trial from which this appeal resulted the fact is brought out by plaintiff's evidence that when the defendant's foreman ordered him to place this bolt in the hole, the plaintiff did not know that a platform would soon be erected in the opening on which he could stand and do this task, but that the foreman knew that the platform would be built and knew that within fifteen to twenty minutes such platform would be constructed. The testimony of the plaintiff does not tend to show that the bolt was placed in this hole for the purpose of constructing the platform, but was merely put there on which to fasten a block and tackle with which the angle bars would be drawn up. The evidence further discloses that that very afternoon the platform was completed, and that the hole in which plaintiff was attempting to put the bolt when he slipped and fell was but eight feet from the bottom of the main opening in the stack, and that he had one foot on the iron rim of the stack at the time he fell, from which it clearly appears that had he waited to perform this task until after the platform was constructed he could have stood on the platform and done what he says he was sent to do by the foreman.

The foreman testified: "Q. Hanging this contraption to raise the angle bars up to the big opening in the stack could have been done as well after the platform was built as before, could it not? A. That was best to do to build the platform first."

There is a clear conflict in the testimony of the plaintiff and his witness, Allen, who was the foreman, as to the order actually given. Allen denies that he ordered the plaintiff to put the bolt in the hole, but the plaintiff testifies that the foreman did order him to do it, and Allen himself admits that before plaintiff stepped onto the rim of the opening in the stack he knew that plaintiff was going to place the bolt in the hole because plaintiff had called for a bolt, and the foreman was there when it was thrown up to him, and at that time plaintiff was standing on the roof of the engine room which was situated about one foot north and several inches below the bottom of the opening in the stack.

The well known rule is stated in LaBatt's Master & Servant (2d ed.), vol 3, sec. 906, p. 2403: "The degree of care required of an employer in protecting his employees from injury is the adoption of all reasonable means and precautions to provide for the safety of his servants while in the performance of their work."

It may be stated that it is the duty that the law requires of the master to use all reasonable means and precautions against injuring a servant which ordinary prudence and foresight, in the light of the existing knowledge of conditions, dictate. This has reference, not only to a safe place in which to work and the kind of appliances furnished, but as well to the requirements, demands and orders issued to servants from time to time in the process of the work.

The liability of the master is measured by his knowledge, either actual or constructive, of the surrounding facts and circumstances, and in determining whether the master is negligent, courts do not...