Jackson v. Butler

• Decision Date: 08 April 1913
• Citation: 155 S.W. 1071,249 Mo. 342
• Parties: FLOYD D. JACKSON, a Minor, by EDWARD Z. JACKSON, His Curator, v. JAMES J. BUTLER and MERCANTILE TRUST COMPANY, Executors of Estate of EDWARD BUTLER, Appellants. FLOYD D. JACKSON, a Minor, by EDWARD Z. JACKSON, His Curator, v. UNIVERSAL ADDING MACHINE COMPANY, Appellant
• Court: Missouri Supreme Court

155 S.W. 1071

249 Mo. 342

FLOYD D. JACKSON, a Minor, by EDWARD Z. JACKSON, His Curator, v. JAMES J. BUTLER and MERCANTILE TRUST COMPANY, Executors of Estate of EDWARD BUTLER, Appellants. FLOYD D. JACKSON, a Minor, by EDWARD Z. JACKSON, His Curator, v. UNIVERSAL ADDING MACHINE COMPANY, Appellant

Supreme Court of Missouri

April 8, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Matthew G Reynolds, Judge.

Affirmed as to Universal Adding Machine Company; reversed as to other defendants.

Watts Gentry & Lee for appellant Universal Adding Machine Company.

(1) A master's duty to use ordinary care to provide suitable appliances and a safe place to work is limited to so furnishing them for the performance of the functions for which they are intended. Rutledge v. Railroad, 110 Mo. 312; Morrison v. Fibre Co., 70 N.H. 406; Durgin v. Munson, 9 Allen, 396, 25 Am. Dec. 770; Kern v. DeCastro, etc. Co., 125 N.Y. 50; York v Railroad, 117 Mo. 405. Applying this principle the master is relieved where the use made of the appliance or place was different from that intended: (a) Riding on vehicles only intended for freight: Kern v. Ref. Co., 125 N.Y. 50; Ross v. Cross, 17 Ont. 31; Riordan v. Ocean S.S. Co., 124 N.Y. 655; Felch v. Allen, 98 Mass. 572; Morris v. Brown, 111 N.Y. 318. (b) Appliances improperly used for support of a servant's person: Morrison v. Fibre Co., 70 N.H. 406; Saunders v. Brick Co., 63 N.J.L. 554; Young v. Railroad, 69 N.H. 356; Graham v. Railroad, 63 F. 896; Bell v. Mill Co., 77 Miss. 387; Teetsel v. Simmons, 34 N.Y.S. 972; Creberry v. Transit Co., 77 Hun, 74; Railroad v. Docherty, 66 Ill.App. 17; Jayne v. Coal Co., 109 Mich. 242; Tel. Co. v. Speicher, 59 N.J.L. 23. (c) Doing work in a manner different from that contemplated by the employer. Rysdorp v. Pankratz L. Co., 95 Wis. 622; Stetler v. Railroad, 46 Wis. 497; Cluny v. Cornell Mills, 160 Mass. 218. (d) Doing work with an appliance not designed for such a function. McPherson v. Bridge Co., 20 Ore. 486; Railroad v. Daniels, 73 Miss. 258; Maher v. Thropp, 59 N.J.L. 186; McKay v. Hand, 168 Mass. 270. (e) Using a part of the master's premises for a purpose for which it was not intended. Lenk v. Coal Co., 80 Mo.App. 374; Plunkett v. Railroad, 105 Ga. 203, 102 Ga. 577; Murphy v. Greeley, 146 Mass. 196; Williams v. Railroad, 119 Mo. 316. (2) The duty of the master to use ordinary care to provide a safe place to work is a relative duty dependent upon and restricted to several different elements: (a) The place must be in the control of the master: Yearsley v. Sunset Co., 110 Cal. 236; Channon v. Sanford Co., 70 Conn. 573; Whitton v. Sprague Co., 37 N.Y.S. 174. (b) The place must have been furnished by the master for the purpose for which the servant used it. (c) And the general rule is again qualified if the place is not yet constructed or repaired so as to be suitable for permanent use: 1 Labatt on Master and Servant, sec. 29, p. 66; Heald v. Wallace, 100 Tenn. 346; Fraser v. Lumber Co., 45 Minn. 235; McGinty v. Reservoir Co., 155 Mass. 183; Coal Co. v. Scheller, 42 Ill.App. 619; Armour v. Hahn, 111 U.S. 313; Minneapolis v. Lundin, 58 F. 525; Railroad v. Jackson, 65 F. 48; Railroad v. Brown, 73 F. 970. (3) The plaintiff was guilty of contributory negligence which barred his right of recovery. The mere fact that he was only sixteen years old does not prevent the application of the rule where he was bright and intelligent. McGee v. Railroad, 214 Mo. 530.

F. W. Imsiepen for other appellants.

(1) There was a total failure of proof to sustain a single one of plaintiff's vital allegations against defendant Butler tending to show the existence of a duty owing to plaintiff and there was no proof given or offered by plaintiff from which the trial court could have inferred the existence of any legal duty on the part of Butler to the lessee's employees or that plaintiff had a good cause of action against defendant Butler which might thereafter be set forth in an amended petition. If it is rightly assumed from proper inferences drawn by the trial court, upon the proof given, that the work of alteration and addition shown to have been in progress on the leasehold premises at the time of the accident complained of was being done by defendant Evans under his contract with Butler, then Evans was an independent contractor, and Butler was not liable for the negligent acts of the contractor and was not liable for the negligent acts of the lessee in permitting the lockers mentioned in the evidence to stand in a leaning and dangerous position while the building work mentioned in the evidence was in progress. 2 Thompson on Negligence, sec. 22, p. 899; Crenshaw v. Ulman, 113 Mo. 639; Shearman & Redfield, Negligence (5 Ed.), sec. 164. The evidence in this case shows beyond question that defendant Evans was an independent contractor for the entire job, of making the alterations and additions on the leasehold premises required by the terms of the contract between Butler, lessor, and defendant Adding Machine Co., lessee, the defendant Butler having nothing whatever to do with the management of the work, employment or payment of the hands or any power to discharge them. And it makes no difference that Butler had employed defendants Baker & Knell, architects, to superintend the work and to see that the contract was complied with. The liability of Butler depends on his relation with Evans and the principle of respondeat superior applies to the contractor who employs the men, and whose servants they are, but not to Butler with whom the original contract was made. Cooley on Torts (3 Ed.), p. 1098; Crenshaw v. Ulman, 113 Mo. 639; Blumb v. City, 84 Mo. 112; City v. Slack, 134 Mo. 66; Morgan v. Bowman, 22 Mo. 538; Hilsdorf v. St. Louis, 45 Mo. 98; Clark v. Railroad, 36 Mo. 281; Barry v. St. Louis, 17 Mo. 121; Fink v. Furnace, 82 Mo. 276; 2 Thompson, Negligence, sec. 41, p. 913; Erie v. Caulkins, 85 Pa. St. 247; Callahan v. Railroad, 39 Oh. 461; School District v. Fuess, 98 Pa. St. 600; Keeley v. Mayer, 11 N.Y. 432; Robinson v. Webb, 11 Bush, 464. (2) There was no proof offered tending to show that Butler had interfered with the contractor. Brown v. Peat, L. R., 1 Q. B. D. 321, 45 L. J. Q. B. 446; Hughes v. Percival, 8 App. Cas. 444; Lloyd, B. & Buildings, sec. 81 (1894), p. 139. There was no proof offered tending to show that the building work would probably injure others, or that Butler knew that the work which he ordered Evans to do would create a nuisance. Guardians v. St. Lenords, 2 Q. B. D. 145; Gray v. Pullen, 11 L.T.R.(N.S.) 569; Ellis v. Strand, 93 Law Times, 354; Wilber v. White, 98 Me. 191; Hilliard v. Richardson, 3 Gray, 349, 63 Am. Dec. 743.

Frederick A. Mayhall and Virgil Rule for respondent.

(1) Judge Valliant in Holmes v. Railroad, 190 Mo. 105 tersely states the rule as to the duty of the court; the care required to avoid injuring minors, and the care required of the minor. We call attention to these potent facts: Under our statute the master was required to furnish water closets. The place on the chute where this boy was injured was directly between the wash room and water closets. It was a place where in the ordinary course of events the 200 or more boys employed by this master would pass in the thirty minutes allotted for lunch. The evidence shows this place was constantly used by these boys -- it shows that they ate their lunch there -- they were going in and out there over this chute during the half hour and six or seven were at the time not more than five or six feet away, farther down the chute. Yet the master for two days permitted these ponderous steel lockers to be leaning up against this chute -- and in a position where, owing to their construction, they were liable to tumble over at any minute. The detached lockers, being without legs on one side, would not stand unless fastened against a wall. The dangerous position of the lockers which injured plaintiff were partially obscured by being covered by a tarpaulin. Under these facts, the master's failure to know of the dangerous condition of this chute for two days and his failure to remove the danger or warn the boys, was gross carelessness; at least reasonable men might fairly differ on the question. (2) As to the contributory negligence of plaintiff, we submit that before that can be sustained as a matter of law, all reasonable men, under the facts and circumstances shown in evidence must draw the conclusion that this boy in placing himself upon this chute did a thing that no other reasonable boy of his age, experience and discretion would do. Zellars v. Water & Light Co., 92 Mo.App. 117. An owner or person in charge, having control over premises, must keep his premises in such condition as to be reasonably free from danger. If necessary where he maintains dangerous places in the prosecution of his business he must have such places guarded or give warning of their existence. This rule applies to any person lawfully upon the premises. Miller v. Peck D. G. Co., 104 Mo.App. 614; O'Donnell v. Patton, 117 Mo. 13; Welch v. McAllister, 15 Mo.App. 492; Sykes v. Railroad, 88 Mo.App. 193; Hartman v. Mueshlebach, 64 Mo.App. 578; Tinkle v. Railroad, 212 Mo. 415; Hollis v. Merchants Assn., 205 Mo. 508; Ewald v. Railroad, 70 Wis.420; McGregor v. Auld, 83 Wis. 546; Helmke v. Thilmay, 107 Wis. 221; Rodger v. Printing Co., 103 Mo.App. 683; Lenk v. Coal Co., 80 Mo.App. 374, 381; Pipe Line Co. v. Neusbaum, 21 Ind.App. 361; Walbert v. Trexler, 156 Pa. St. 117; Glaser v. Rothschild, 106 Mo.App. 418; Franke v. St. Louis, 110 Mo. 516. The servant is not charged with the duty of inspecting the place to detect lurking dangers. Browning v. Kaslen, 107 Mo.App. 59; Franklin v. Railroad, 97 Mo.App. 473. A servant does not assume the risk of injury from defects which...