Kelley v. Lawrence

• Decision Date: 29 March 1906
• Citation: 92 S.W. 1158,195 Mo. 75
• Parties: KELLEY v. LAWRENCE et al.
• Court: Missouri Supreme Court

92 S.W. 1158

195 Mo. 75

KELLEY v. LAWRENCE et al.

Supreme Court of Missouri, Division No. 2.

March 29, 1906.

1. MASTER AND SERVANT — INJURIES TO SERVANT — APPLIANCES — USE.

While a master is bound to use reasonable care and prudence in providing his servants with suitable appliances, he is not liable for injuries to servants caused by their negligent use of the appliances supplied.

2. SAME — CONTRIBUTORY NEGLIGENCE — PROXIMATE CAUSE.

A servant, knowing that a wooden railing along a viaduct between two buildings was intended merely to disclose the sides of the platform, and not for persons to sit on, negligently attempted to sit on such railing while talking to a customer. The railing broke, causing the injuries complained of. In an action against the master therefor, there was no evidence that the part of the viaduct intended to be used for travel was defective in any manner, as alleged in the complaint. Held, that the servant's contributory negligence was the proximate cause of his injury.

Error from Circuit Court, Daviess County; J. W. Alexander, Judge.

Action by J. F. Kelley against M. W. Lawrence and others. From a judgment for defendants, plaintiff brings error. Affirmed.

This cause is here upon a writ of error sued out by the plaintiff for the purpose of having the judgment and proceedings of the Daviess county circuit court in the above cause reviewed by the court. This is an action for personal injuries, and is predicated upon substantially the following state of facts: On the 22d day of March, A. D. 1900, and prior, defendants M. W. Lawrence and John J. Enyeart were engaged in the sale of hardware, implements, buggies, etc., at Gallatin, Daviess county, Mo. The hardware was kept in the first floor of the building on the east side of the square, and the buggies, after being uncrated and ready for sale, were kept in the second story of the building across the alley some 16 feet from the main store building. This room was known and used as the buggy salesroom. In the lower part of this last-mentioned building was kept implements of various kinds. The entrance to the salesroom was had by porch and steps at the east end of the hardware room connecting with viaduct and this viaduct extending from said storeroom building to the salesroom, across the 16-foot alley before mentioned. This viaduct or passageway was built and used for a passage or walkway from said main store building to the buggy room for the purpose of employés of said defendants engaged in the showing and selling of the buggies to make use thereof in passing to and fro with customers. It had been erected as early as 1898, during the occupancy of a Mr. Pierce, and was built by the use of three stringers or sleepers running across the alley from the stairway to the building in which the buggies were situated. A floor about four feet in width of pine lumber being placed upon these sleepers and a railing or banister of 2×4 pine lumber about 2½ feet high being placed on either side thereof. It was not fastened at the stairway. It had been nailed to an upright piece on the implement building and was fastened in the middle by being nailed to an upright piece running from said sleepers. It was about 16 feet from this viaduct to the surface of the alley below. This alley had been macadamized, at least a large amount of rock had been placed therein prior to the date of plaintiff's injury. The buildings and viaduct before mentioned were the property of defendant, Thomas Crain and leased by him to the defendants, Lawrence & Enyeart. On the 22d day of March, 1900, the two last-named defendants employed the plaintiff as general salesman for hardware, implements, and buggies. Plaintiff continued in said defendants' employ until the 16th day of July, 1900, at which time he went with Mr. Cyrus Musselman from the general salesroom to the buggy room, by means of a viaduct before mentioned, for the purpose of showing, and if possible selling to Mr. Musselman a buggy. After examining the buggies, remaining in the buggy room from 10 to 20 minutes in so doing, Mr. Musselman proposed exchanging his old buggy for one shown him by plaintiff. Mr. Musselman and plaintiff started to leave the buggy room by means of the viaduct; upon reaching the viaduct plaintiff halted, and while discussing the buggy deal with Mr. Musselman, started to sit down, or did sit down, he is not positive which, upon the railing on the south side of this viaduct, and while making use of the viaduct in that manner, the railing or banister gave away, plaintiff and railing or banister falling from said viaduct to the surface of the alley below, by reason of which fall he was injured. The negligence complained of is thus stated in the petition: "That on the 16th day of June, 1900, defendant, Thomas Crain was the owner of the buildings occupied by said defendants, Lawrence & Enyeart in conducting their said business, and was for a long time prior and a long time after said date the owner thereof, and the landlord and lessor of said firm for the said purpose of conducting said business. That it was the duty of said Crain as said landlord and lessor, and the defendants, Lawrence & Enyeart, as well, to put the said premises and keep the same in reasonably safe condition for the purpose and use for which they were let to and used by said defendants, Lawrence & Enyeart, their agents and servants. That the buildings occupied and used by said last-named defendants, Lawrence & Enyeart, in conducting their said business consisted of two two-story buildings with a stone-paved alley or passageway between the same. That the upper stories of the said two buildings were used by said defendants as storage and salesrooms in and about their said business, and connection was had and passage was made from one to the other of said upper story rooms of said buildings by means of a wooden viaduct, bridge, or passageway placed there for that purpose and so maintained and used by said defendants as owner and lessor and users and tenants as aforesaid. That it was the duty of said defendants Lawrence & Enyeart, and of said Crain as well, to see that said viaduct, bridge, or passsageway was in a reasonably safe condition, for which it, as they and each of them well knew, it was to be, and was so used, and to keep the same in such reasonably safe condition for such use. That plaintiff was in the month ____, 1900, and a short time prior to the 16th day of June, 1900, employed by defendants, Lawrence & Enyeart, as clerk and salesman in and about their said business, and entered upon the discharge thereof. That on the said 16th day of June, 1900, the said viaduct, bridge or passageway was in a rotten, unsafe, and dangerous condition for use for the purpose for which it was let and used, which rotten, unsafe, and dangerous condition all of said defendants well knew, or by the exercise of reasonable diligence might and would have known. * * * That the part thereof which by reason of its said condition gave way and caused plaintiff's falls as aforesaid, was the guard rail or banister and rotten parts thereon unknown to plaintiff, all of which were rotten, insecurely fastened and unsafe."

To this charge of negligence the defendants filed the following answer: "Come now defendants and for their amended answer to plaintiff's petition herein deny each and every allegation therein contained. Further answering, defendants say that plaintiff's injuries, if he was injured, was caused by the breaking of a certain guide rail, built of light two by four-inch pine stuff, the purpose thereof being to mark the sides of a certain bridge or viaduct constructed across the alley, and connecting the store or salesroom in which defendants Lawrence & Enyeart were doing business and the wareroom in which their surplus stock was stored; that said bridge or viaduct was built safely as a passway between said storeroom and wareroom; that said guide rail was not built to set on or lean against, but was built and solely intended as a guide rail to mark the sides of said bridge or viaduct to prevent persons thereon from walking thereoff; that plaintiff had been employed for a long time, to wit, about six months by said defendants, Enyeart & Lawrence; that during all of that time he had worked in and about said premises and...