Leitner v. Grieb

• Decision Date: 09 November 1903
• Citation: 77 S.W. 764,104 Mo.App. 173
• Parties: FRANK LEITNER, by next friend, Respondent, v. LOUIS GRIEB, Appellant
• Court: Kansas Court of Appeals

77 S.W. 764

104 Mo.App. 173

FRANK LEITNER, by next friend, Respondent, v. LOUIS GRIEB, Appellant

Court of Appeals of Missouri, Kansas City

November 9, 1903

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.

REVERSED.

Cause reversed.

Harkless O'Grady & Crysler for appellant.

The plaintiff, under the undisputed evidence, was not entitled to recover and the court should have given a peremptory instruction to return a verdict for defendant, and also instruction No. 2 asked by defendant. Harff v Green, 67 S.W. 576 (not reported); Lampson v American Ax Co., 58 N.E. 585, 177 Mass. 144; Worlds v Railroad, 52 S.E. 646, 99 Ga. 283.

Kagy & Horn for respondent.

Filed an extended argument.

OPINION

BROADDUS, J.

This suit is for damages alleged to have been sustained by reason of an injury caused by the negligence of defendant. The answer was a general denial and allegations of contributory negligence on the part of plaintiff and assumption by him of the risk. The facts given in evidence to support plaintiff's cause of action briefly stated are as follows:

Plaintiff at the time of the injury was a young man about eighteen years of age in the employ of defendant and had been for a while previous to his alleged injury engaged in handling stone; at the time of his said injury he and another workman by the name of Smith were required by defendant to remove a large stone to a trench which had been dug for a foundation which defendant with his laborers were then engaged in building; both plaintiff and said Smith suggested to defendant that on account of the great size of said stone they ought to have another man to assist them; that defendant told them to roll the stone into the ditch; that if they could not, "to leave the job"--or words substantially of the same import; thereupon plaintiff and Smith placed the crowbars which they had for the purpose under the stone and endeavored by raising the ends in their hands to move the stone as required; the stone was lying on some loose earth on account of which either plaintiff's bar or the rock slipped; plaintiff had the end of the bar over his shoulder and when the bar or rock so slipped the additional weight thus caused to be thrown upon it caused the said bar to slide down on plaintiff's arm, whereby he was severely injured. There was also evidence that prior to the occasion named a derrick had been used in handling stone, which, however, was not then in a condition to be utilized.

The only question presented is, whether under the proof and the pleadings the plaintiff is entitled to recover?

It is the contention of the plaintiff that the rule of law applies to this case, viz.: That a servant is not obliged to quit the service of his master because he has failed to furnish safe appliances or tools for the performance of his labor or a safe place in which to perform it, and that by so remaining in his master's employment he does not waive his right to...