Kelley v. Lawrence
| Decision Date | 29 March 1906 |
| Parties | KELLEY, Plaintiff in Error, v. LAWRENCE et al |
| Court | Missouri Supreme Court |
Error to Daviess Circuit Court. -- Hon. J. W. Alexander, Judge.
Affirmed.
C. W Bolster and Harber & Knight for plaintiff in error.
(1) Regardless of what may be said as to the liability of Crain there is no reason why the rule that "the master is bound to take ordinary and reasonable care not to subject his servant to unreasonable, extraordinary dangers by sending him to work in dangerous buildings, or dangerous premises, or with dangerous tools, machinery or appliances, and if failing in his duty in any of the respects mentioned and the servant in consequence thereof is injured, the master is liable therefor," should not apply to the employers of plaintiff, Lawrence and Enyeart. It was their duty, of course, to exercise reasonable care to see that the premises upon which they required plaintiff to work on or about, i e., the crossing or viaduct, was in a condition of reasonable safety for such use and work. Muirhead v. Railroad, 103 Mo. 251; Gutridge v. Railroad, 105 Mo. 520; Henry v. Railroad, 109 Mo. 488; Rutledge v. Railroad, 119 Mo. 312, 123 Mo. 121; Gorham v. Railroad, 113 Mo. 408; Minnier v. Railroad, 167 Mo. 99; Zellars v. Railroad, 92 Mo.App. 107; Weldon v. Railroad, 93 Mo.App. 668; Steinhauser v. Sproul, 114 Mo. 557. This duty was an imperative and continuous one. Rodney v. Railroad, 127 Mo. 676; Suttle v. Railroad, 127 Mo. 336; Gorham v. Railroad, 113 Mo. 408. (2) It was not the duty of plaintiff to seek for any defects in the viaduct, but having no knowledge to the contrary, he had the right to assume that defendants had discharged the duty the law exacted of them towards him for his protection. Turner v. Drake, 71 Mo. 286; Reber v. Tower, 11 Mo.App. 199; Porter v. Railroad, 71 Mo. 66. (3) There is no evidence to in any wise warrant the taking of it from the jury by reason of any contributory negligence or assumption of risk upon the part of plaintiff. Hurst v. Railroad, 163 Mo. 309; Thompson v. Railroad, 86 Mo.App. 141; Herbert v. Shoe Co., 90 Mo.App. 305; Pauck v. Dressed Beef & P. Co., 159 Mo. 467, 166 Mo. 639; Zellars v. Light Company, 92 Mo.App. 107. (4) The viaduct being erected as it was over a public alley of the city, and no authority being shown therefor, and the burden of showing such authority, if any there was, being upon defendants, and said viaduct having been erected by Crain prior to tenancy of his co-defendants, he is also liable with the other defendants. Pope v. Boyle, 98 Mo. 52.
Boyd Dudley for defendants in error.
(1) The master is not liable for a servant's unauthorized use of a tool, appliance or place, which are safe and suitable for the purposes intended, but which we used by the servant for some purpose of use for which they were not intended and the servant is injured thereby. Moran v. Brown, 27 Mo.App. 490; The Persian Monarch, 5 C. C. A. 117, 14 U. S. App. 158, 49 F. 669; Butterworth v. Clarkson, 22 N.Y.S. 714; Ryerson v. Bathgate, 2 Am. Neg. Rep. 300; 20 Am. and Eng. Ency. Law (2 Ed.), 78, 141; York v. Railroad, 117 Mo. 405. The viaduct had been used for years without accident by persons for the purpose for which it was intended. The plaintiff had been in the wareroom with his customer, in a safe place, had just come out of the wareroom door, and voluntarily left a safe place, either on the wareroom floor or viaduct floor, to sit down on a weak rail. His daily use and constant observation, as shown by his own evidence, was bound to bring home to him a conviction that it was not strong enough to support his weight. He left a safe place to sit down on a frail banister that he knew was not intended to sit on, and he was not required to sit on, and that his employers did not want him to sit on, and having voluntarily left a safe place for one of danger, without thought, careless of his own safety, and negligent of the danger, he cannot recover. (2) The demurrer was properly sustained, because, where the plaintiff's own evidence establishes contributory negligence, there is no disputed fact for the jury to pass upon, and the plaintiff should be nonsuited, or the jury directed to return a verdict for the defendant. Roberts v. Tel. Co., 166 Mo. 370; Hudson v. Railroad, 101 Mo. 13; Milburn v. Railroad, 86 Mo. 104; Schlereth v. Railroad, 96 Mo. 509; Stone v. Hunt, 94 Mo. 475; Buesching v. Gas Co., 73 Mo. 219. (3) In the absence of a covenant, the landlord is under no obligation to repair the premises during the course of the tenancy. Nor is he liable to the tenant for injuries resulting to him from failure to repair. In the absence of contractual obligations, the landlord, as to his tenant, is only liable for acts of misfeasance and not of nonfeasance. Roberts v. Cottey, 100 Mo.App. 503; Whiteley v. McLaughlin, 183 Mo. 160; Rogan v. Dockery, 23 Mo.App. 313. The same rule applies to a member of the tenant's family or his employees. Whiteley v. McLaughlin, 183 Mo. 160; 18 Am. and Eng. Ency. Law (2 Ed.), 238; O'Brien v. Capwell, 59 Barb. (N.Y.) 497; Jaffe v. Hartman, 56 N.Y. 401; Quay v. Lucas, 25 Mo.App. 4. As a general rule, the landlord is not liable for injuries to third persons during the tenancy, from the defective repair of the demised premises. 18 Am. and Eng. Ency. Law (2 Ed.), 238; Quay v. Lucas, 25 Mo.App. 4; Ward v. Fagan, 28 Mo.App. 116; Mayer v. Schrumpf, 85 S.W. 915; Roberts v. Cottey, 100 Mo.App. 500; Peterson v. Smart, 70 Mo. 34. Where, at the time of the letting, the premises are in a proper state of repair, and they are permitted by the tenant to get into a condition dangerous to the public or third persons, the landlord is not, as a general rule, liable to third persons for injuries caused therefrom during the tenancy. Deutsch v. Abeles, 15 Mo.App. 398; Pope v. Boyle, 98 Mo. 527; Stoetzele v. Swearingen, 90 Mo.App. 588. Unless there is an express covenant on the part of the landlord to repair, he is not bound to keep the premises in repair. Vai v. Weld, 17 Mo. 232; Morse v. Maddox, 17 Mo. 574; Burnes v. Fuchs, 28 Mo.App. 279; Ward v. Fagan, 101 Mo. 669; Gordon v. Peltzer, 56 Mo.App. 602; O'Brien v. Capwell, 59 Barb. 497; Roberts v. Cottey, 100 Mo.App. 500; Rogan v. Dockery, 23 Mo.App. 313; Mayer v. Schrumpf, 85 S.W. 915.
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 Circuit Court, in the above cause, reviewed by this 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 thereto, defendants M. W. Lawrence and John J. Enyeart were engaged in the sale of hardware, implements, buggies, etc., at Gallatin, Daviess county, Missouri. 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 sixteen feet from the the main store building. This room was known and used as the buggy salesroom. In the lower part of this last-mentioned building were 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 a viaduct and this viaduct extending from said storeroom building to the salesroom, across the sixteen 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 employees 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 two by four pine lumber about two and one-half 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 sixteen 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 and Enyeart. On the 22nd day of March, 1900, the two last-named defendants employed the plaintiff as general salesman for hardware, implements and buggies. Plaintiff continued in said defendant's 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 the 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 ten to twenty 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 buggyroom 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...
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