Huskey v. Heine Safety Boiler Company

• Decision Date: 30 January 1915
• Parties: ERASTUS HUSKEY, Respondent, v. HEINE SAFETY BOILER COMPANY, Appellant
• Court: Missouri Court of Appeals

173 S.W. 16

187 Mo.App. 438

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

Court of Appeals of Missouri, Springfield

January 30, 1915

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

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Sheppard Green & Sheppard for appellant.

(1) The court should have given appellant's instruction in the nature of a demurrer to the evidence at the conclusion of respondent's evidence for the reason that respondent failed to make a prima-facie case against appellant. (2) Respondent's own case shows that he was guilty of contributory negligence in this: That he chose a dangerous way instead of a safe way of putting the bolt in the bolt hole and therefore is not entitled to recover. Moore v Railroad, 146 Mo. 572; Hulett v. Railroad, 67 Mo. 241; George v. St. Louis Manufacturing Co., 159 Mo. 333; Smith v. Box Company, 193 Mo. 715, 734-5; 26 Cyc., p. 248; Sparks v. Railroad, 31 Mo.App. 111; Doerr v. Brewing Ass'n, 176 Mo. 547; Craig v. Railroad, 54 Mo.App. 523; Pohlmann v. American Car & Foundry Co., 123 Mo.App. 219. (3) Respondent was as familiar with the conditions and the dangers surrounding the place at which he was working when he was injured as was appellant's foreman, and therefore assumed whatever risks there were incident to his employment. Fugler v Bothe, 117 Mo. 475 and cases cited; Pohlmann v. American Car Fdy. Co., 123 Mo.App. 219; Keegan v. Kavanaugh et al., 62 Mo. 232; Letanovsky v. Shoe Co., 157 Mo.App. 120; Harris v. Railroad, 146 Mo.App. 524; Holloran v. Iron & Foundry Co., 133 Mo. 470; Knorpp v. Wagner, 195 Mo. 647; Steinhauser v. Spraul, 127 Mo. 541; Harris v. Railroad, 250 Mo. 567. (4) The court erred in giving to the jury respondent's instruction number 1. Said instruction does not properly declare the law as applied to the facts in the case. It assumes that it was practical to have placed a circular platform inside the smokestack in question for respondent to stand on while working when there was evidence to the contrary. Burrows v. Likes, 180 Mo.App. 447, 166 S.W. 643; Abbott v. Mining Co., 112 Mo.App. 550, 556.

Abington & Phillips for respondent.

(1) Defendant's foreman ordered plaintiff to a place that said foreman knew to be dangerous and at which place the general superintendent had ordered said foreman to build a scaffold; said order to plaintiff was negligent and the court did not err in refusing defendant's peremptory instruction in the nature of a demurrer to the evidence. Schultz v. Moon, 33 Mo.App. 329; Musick v. Packing Co., 28 Mo.App. 322; Carney v. Brewing Co., 150 Mo.App. 437; Brueggemann v. Carondelet, 153 S.W. 559; Curtis v. McNair, 173 Mo. 270; Erwin v. Telephone Co., 158 S.W. 913; Day v. Company, 114 Mo.App. 479; Ludwig v. Company, 156 Mo.App. 117. (2) Even though plaintiff knew that there was no platform or other device in the stack to prevent him from falling and that such fact made the place to which he was ordered dangerous still, he was not guilty of contributory negligence in going to the place ordered and in attempting to do the work required of him unless the place to which he was ordered was so glaringly dangerous and threatening that a reasonably prudent person would not have attempted to work in and about the same. Loftis v. Kansas City, 156 Mo.App. 683; Morris v. Railroad, 168 S.W. 323; Howard v. New Madrid, 148 Mo.App. 57; Coffee v. Carthage, 186 Mo. 573; Heverling v. Warrensburg, 204 Mo. 604; Diamond v. Kansas City, 120 Mo.App. 185; Lueking v. Sedalia, 180 Mo.App. 203, 167 S.W. 1152; Perette v. City, 162 Mo. 238; Bolen v. Kansas City, 32 Mo.App. 8; Maus v. City of Springfield, 101 Mo. 613; Perrigo v. City, 185 Mo. 274; Swanson v. Sedalia, 89 Mo.App. 121; Loewer v. Sedalia, 77 Mo. 431; Shortel v. St. Joseph, 104 Mo. 114; Schultz v. Moon, 33 Mo.App. 329; Musick v. Packing Co., 28 Mo.App. 322; Carney v. Brewing Co., 150 Mo.App. 437; Brueggemann v. Carondelet, 153 S.W. 559; Curtis v. McNair, 173 Mo. 270; Day v. Dry Goods Company, 114 Mo.App. 479; Ludwig v. Cooperage Company, 156 Mo.App. 117; Erwin v. Telephone Co., 158 S.W. 913; Morgan v. Railroad, 136 Mo.App. 337; Herriman v. Railroad, 27 Mo.App. 435; Stephens v. Railroad, 96 Mo. 207; Keegan v. Kavanaugh, 62 Mo. 232; Cox v. Granite Co., 39 Mo.App. 429; McGee v. Railroad, 92 Mo. 218; Fusili v. Railroad, 45 Mo.App. 540; Halliburton v. Wabash, 58 Mo.App. 68; Lucey v. Oil Co., 129 Mo. 32; Bohem v. Company, 162 S.W. 723; Wesner v. Railroad, 177 Mo.App. 117, 163 S.W. 298; Curtwright v. Ruehmann, 164 S.W. 701; Gambino v. Manufacturing Co., 164 S.W. 264. (3) Instruction number 1 complained of by appellant is a correct declaration of the law and was properly given.

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

OPINION

FARRINGTON, J.

--The plaintiff recovered a judgment for three thousand dollars on account of personal injuries received by him while in the employ of the defendant. The petition is here set forth as an aid in stating the facts of the case: (Formal parts omitted.)

"Plaintiff states that the defendant is now and was at all the times hereinafter mentioned a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, and that on the 8th day of December, 1913, plaintiff was employed by the defendant in the capacity of sheet metal worker.

"Plaintiff for his cause of action states that on said 8th day of December, 1913, and while he was so employed by the defendant in the capacity aforesaid, said defendant was engaged in the city of Poplar Bluff, Missouri, in erecting and installing for the Missouri Public Utilities Company, a metal smokestack, which said stack was of the height of about one hundred fifty-two feet, and of the diameter of about six feet, and the metal composing the same of the thickness of about one-fourth of an inch; that on the north side of said pipe and some sixteen feet above the ground was a large opening of the height of eight feet and of the width of about six feet and which said opening had rivet or bolt holes entirely around the same, and which opening was intended as an entrance for the smoke that would thereafter be conveyed from an adjoining building by means of large pipes, which said pipes were to be fastened to said smokestack and held in place by means of large heavy contrivances called angle bars.

"Plaintiff further states that on said 8th day of December, 1913, said smokestack had been erected and defendant was preparing to connect the large opening in the north side thereof by means of large piping to the adjacent building as aforesaid, and plaintiff states that to accomplish said purpose it was necessary to raise said angle bars from the ground by means of a block and tackle to the height of said opening; and the plaintiff states that to install said block and tackle, and perform said work and accomplish said results, that it was necessary for the defendant's servants and employees, to work in and about said opening in said stack at said distance of sixteen or more feet from the ground; and, plaintiff states that for their safety, it then and there became the duty of the defendant to furnish, and maintain for them to work upon, a circular platform on the inside of said stack at a point near the bottom of said large opening as aforesaid, said platform to rest upon certain lugs fastened on the inside of said stack for said purpose, and which said platform should have been furnished defendant's employees by it to stand upon while doing said work as aforesaid, but plaintiff states that the defendant carelessly and negligently and in violation of its duty in that regard failed and neglected to so erect, furnish and maintain such platform at said place upon said lugs as aforesaid, or to take any other precaution to protect its employees from injury while working in and about the opening in said stack aforesaid.

"Plaintiff further states that on said December 8, 1913, defendant's foreman with the intention of rigging up a block and tackle to hoist said angle bars up to said opening aforesaid, and well knowing that defendant had negligently and carelessly failed and neglected to furnish and maintain a platform near the bottom of said opening inside said stack and well knowing the dangers attending an attempt to work in and about said opening without said platform being upon the inside of said stack at the place aforesaid negligently and carelessly and in violation of his duty in that behalf, and of the safety of plaintiff, carelessly and negligently ordered plaintiff into a place of danger, to-wit; directed and ordered plaintiff to go to a position in said opening in said stack aforesaid and to place in a bolt hole in the top of said opening a bolt upon which was to be fastened the block and tackle to draw up said angle bar as aforesaid; that to fasten said bolt at the place directed by defendant's foreman, owing to the negligence of defendant in failing to provide and maintain said circular platform on the inside of the stack as aforesaid, it was necessary and which necessity was known to defendant's foreman, for plaintiff to stand with one foot on the thin metal forming the bottom of said opening, place the other foot on one of the lugs inside of the stack and reaching high above his head, place the bolt through the bolt hole aforesaid.

"And plaintiff states that in obedience to said order of his foreman and master, and without fault or negligence on his part, he attempted to place said bolt in said hole in the manner and by the means as aforesaid and while standing on the bottom of said opening and said lug as aforesaid and while attempting to place said bolt in said bolt hole for the purpose and in the manner aforesaid and pursuant to the...