Jones v. Queen City Wood Works Co.

• Decision Date: 11 March 1922
• Citation: 239 S.W. 532,215 Mo.App. 142
• Parties: GRANT G. JONES v. QUEEN CITY WOOD WORKS COMPANY
• Court: Missouri Court of Appeals

239 S.W. 532

215 Mo.App. 142

GRANT G. JONES v. QUEEN CITY WOOD WORKS COMPANY

Court of Appeals of Missouri, Springfield

March 11, 1922

Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

AFFIRMED.

Judgment affirmed.

John P McCammon for appellant.

(1) If a servant in the face of a manifest danger chooses to go on with the work, he does so at his own risk and not at the risk of his master. Labatt, Master and Servant, sec. 1183. (2) The risk of falling on the icy pavement was assumed by plaintiff being known to him. Thomas v. Railway Co., 107 Mo. 187; Price v. Railway, 77 Mo. 508; 2 Thompson on Negligence, sec. 1008. (3) It is not negligence to employ men to work in places known by them to be dangerous. Berry v. Kansas City, 128 Mo.App. 374; Nagel v. Gas Co., 169 Mo.App. 423. (4) When the servant ought to have known of the risk he cannot recover. Labatt, Master and Servant, sec. 1307, p. 3663. (5) The risk of falling on the ice was a natural risk incident to plaintiff's employment. Watson v. Coal Co., 52 Mo.App. 366; Braden v. Railway, 174 Mo.App. 584. (6) Plaintiff assumed all risk of injury in this case. Bohn v. Railroad, 106 Mo. 429, l. c. 434; Shea v. Railroad, 76 Mo.App. 29. (7) The second special defense of defendant, proven by plaintiff's testimony was not referred to in plaintiff's first instruction purporting to cover the whole case, and was erroneous. Kelly v. City, 170 Mo.App. 358; Enloe v. Am. Car. and Foundry Co., 240 Mo. 443.

Hamlin & Hamlin for respondent.

(1) Servant will not be precluded from recovery for injury in carrying out order of master involving danger, unless the danger be so absolute or imminent that danger must necessarily result from obedience to the order. Labatt on Master and Servant, sec. 439, p. 1241; Mahaney v. Railway Co., 108 Mo. 191. (2) If the servant acts in obedience to an order the doctrine of assumption of the risk does not apply. Labatt, chapter 56, section 1362; Morgan v. Railway Co., 136 Mo.App. 337.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

--This is a suit for personal injuries, tried in the circuit court of Greene County wherein the plaintiff recovered judgment for $ 2000. The appellant appeals from such judgment, alleging that the trial court committed error in refusing to give defendant's instruction in the nature of a demurrer to the evidence, and further assigning error in the giving of plaintiff's instructions.

The negligence charged in the petition is as follows:

"That on the morning of the day aforesaid, well knowing the conditions of the weather and the streets aforesaid, knowing that the same was slick and dangerous along Boonville Street, the defendant negligently ordered and directed the plaintiff to carry lumber from the building in which the machinery was kept along Boonville Street to the shed rooms adjoining Court Street, and at the time of directing plaintiff to do so the defendant assisted the plaintiff in putting said lumber on his shoulder, and plaintiff, after having received said order and having had the lumber placed on his shoulder as aforesaid, attempted to carry out defendant's instruction and while so doing and using ordinary care and caution, on account of the sleet and slick condition of the street, and by having said lumber on his shoulder he was unable to protect himself and by reason thereof plaintiff slipped and fell, and fractured his right shoulder. That the negligence of the defendant was as follows:

In not putting saw-dust or salt along the sidewalk on Boonville Street from where the lumber was handed him to the shed rooms. That if it had done so then the plaintiff could have walked over the ice with safety; and that the defendant was negligent in ordering the plaintiff to carry the lumber as aforesaid without first providing him a safe place to do so by putting saw-dust or salt along the street and on the ice as aforesaid.

That by reason of the negligence of the defendant aforesaid he has suffered great pain of body and mind from said time to the present."

The evidence in this case shows that the defendant is engaged in the lumber and manufacturing business in the city of Springfield, Missouri, and occupies and uses in connection with its business the ground along Boonville Street from Pacific Street to Court Street; that along the east side of defendant's place of business is a brick sidewalk. It further shows that the machinery department of the plant is toward the north end of the plant, and that the south end is used for sheds in storing and keeping lumber. That in January, 1920, the plaintiff was in the employ of the defendant as a common laborer, working under the defendant's foreman. That the day on which the injury occurred was cold, the night before it had rained and the ground was coated with a sheet of ice. The evidence shows that the machinery room has several windows along Boonville Street, the building coming up to the property line. That the plaintiff, when he came to the plant to work in the morning, knew that a heavy coat of ice was on the ground and so did the foreman of the defendant. Shortly after coming to work, defendant's foreman called to plaintiff and another employee by the name of Mayfield and ordered them to go out on Boonville Street, up near the north end of the building, and get some lumber and carry it to the sheds at the south end of the plant. The evidence shows that when this order was given Mayfield said, "It is going to be pretty slick," and that the foreman answered, "Yes; I know it, but by being careful I think we can make it all right." The lumber which was to be carried by the plaintiff and Mayfield was shoved out of a window by one of defendant's foremen. It consisted of oak plank something like one inch thick, six inches broad and some ten or twelve feet long. Several of these boards were placed together, and Mayfield started with the first load, having been assisted in getting it on his shoulder by Allen, another of defendant's foremen; then the plaintiff was assisted by Allen in getting his load up on his shoulder and started to the south end of the plant, which is fixed at a distance of between fifty and one hundred yards. When he had gone something like thirty feet, he slipped and fell and the oak plank came down on him, severely injuring his shoulder. As to the nature of his injury, without going into detail, we will state that the doctors declared that it was in all probability a permanent injury, and would require at least a long time before the use of the arm would again become normal, or would require an operation.

There is no evidence here that if the defendant is liable for this injury the amount allowed is so excessive as to require a remittitur, or no showing that the verdict was the result of passion and prejudice. The evidence also shows that there was on hand at defendant's plant, of easy access, saw-dust which could have been sprinkled along the pathway or walk which the plaintiff was required to travel in performing this task. The evidence also shows that the task to which he was put was not a single isolated job but would require going back and forward a number of times. The grounds of negligence, as stated, were a failure to put saw-dust or salt along the sidewalk and ordering the plaintiff to carry the lumber along said pathway, knowing that it was slick and icy.

The defendant filed a general denial, set up two special pleas, one being that the foreman told him not to put the boards on his shoulder but to carry them in his hands, and that the plaintiff disregarded this warning and direction, and in such disregard was guilty of contributory negligence. Second, that the slick and icy condition of the ground along Boonville Street and the danger of slipping and falling thereon was as apparent and plainly to be seen by the plaintiff as by defendant, and that when the plaintiff, knowing all the conditions and appreciating the danger, walked on the slick street, that he assumed the risk of danger of doing same.

On the first proposition that he was directed not to carry the lumber on his shoulder, that was a controverted question of fact and the jury has resolved that in favor of the plaintiff, he...