McGinnis v. Hydraulic Press Brick Co.
| Decision Date | 14 July 1914 |
| Citation | 169 S.W. 30,261 Mo. 287 |
| Parties | WILLIAM T. McGINNIS, Appellant, v. HYDRAULIC PRESS BRICK COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leo S. Rassieur Judge.
Affirmed.
Kinealy & Kinealy for appellant.
(1) The mud scraper, by reason of its character, location and condition, was an obstruction dangerous to persons leaving defendant's building, and the duty of the master to exercise ordinary care to furnish his servant a reasonably safe place to work extends to exits and ingresses and to all places where he properly resorts on the premises in connection with his employment. Schumacher v. Breweries Co., 247 Mo. 141; Strobel v. Manufacturing Co., 148 Mo.App. 22; Dressers on Employers' Liability, sec 13, pp. 75-6; 4 Labatt's Master & Servant, sec. 1558 note 2; Alexander v. St. Joseph, 170 Mo.App. 376. (2) Plaintiff did not know of the obstruction, but even if he did he could not be held guilty of contributory negligence as a matter of law merely because his foot caught under the bent-over scraper. Graney v. St. Louis, 141 Mo. 180; O'Donnell v. Hammond, 144 Mo.App. 155. (3) A peremptory instruction such as was given in this case is never proper where the facts are in dispute or where the facts being undisputed, they are such as to be susceptible of two inferences, one consistent with ordinary care and the other tending to show negligence, thus leaving ground for difference between fair-minded men as to whether or not negligence or contributory negligence exists. Clubb v. Scullin, 235 Mo. 585; Williamson v. Transit Co., 202 Mo. 345; Hegberg v. Railroad, 164 Mo.App. 514.
Garner W. Penney and Percy Werner for respondent.
(1) The servant is chargeable with knowledge of all conditions surrounding his employment, and of risks created by these conditions, according as it may reasonably be inferred that those conditions or those risks would have been comprehended by a person of ordinary prudence whose mental and physical capacities, both natural and acquired, and opportunities for observing the facts indicative of danger, were the same. 1 Labatt's Master & Servant, sec. 391, p. 1028. If the risk is such as to be perfectly obvious to the sense of any man, whether master or servant, then even in the case of defective machinery, the servant assumes the risk. Keegan v. Kavanaugh, 63 Mo. 230; Soller v. Shoe Co., 130 Mo.App. 721; Jones v. Cooperage Co., 134 Mo.App. 330; Pohlman v. Car & Foundry Co., 123 Mo.App. 228. (2) Plaintiff, as servant of the defendant, was bound to inform himself as to his surroundings and is held, as a matter of law, to have known and accepted all the risks of the premises which were open and obvious to the sense of any man. (a) This has been applied to overhead dangers, as where a railroad brakeman ran into an overhead bridge, or a driver drove under a low gateway. Devitt v. Railroad, 50 Mo. 302; Baker v. Asphalt Pav. Co., 92 F. 117; Carroll v. Boston Coal Co., 81 N.E. 296. (b) The same is true as to dangers underfoot, such as risers between a hallway and a room. Ware v. Evangelical Baptist, etc., Assn., 63 N.E. 885. (3) There is no question for a jury here. No jury would have a right to set up a standard which would, in effect, dictate the customs of a community. The matter of what kind of mudscrapers, and where to place them, is a matter for the judgment and discretion and good taste of the owner of the premises. One jury might thoroughly approve of the arrangement; another disapprove. Juries might differ as might individuals. But that would not affect the right of the owner of the premises to use his own judgment and discretion. It is not pretended that the owner set a trap. Questions which are legitimately engineering or architectural questions cannot be submitted to the jury as legal questions. Railroad v. Driscoll, 176 Ill. 334; Railroad v. Riley, 145 F. 137; Gilbert v. Railroad, 128 F. 531; Morris v. Railroad, 108 F. 748; Minnier v. Railroad, 167 Mo. 120; Boyd v. Harris, 176 Pa. 484; Marshall Field & Co. v. Leo Gosky, 133 Ill.App. 316; Larkin v. O'Neill, 119 N.Y. 221; McIntire v. White, 171 Mass. 170. The master is always presumed to have done his duty, and he is furthermore within the protection of the rule that "the extent of his legal obligation is merely to provide instrumentalities that can be used without any abnormal danger by a servant who uses ordinary care." 1 Labatt, Master & Servant, p. 73; Wheat v. St. Louis, 179 Mo. 572; Coffey v. Carthage, 186 Mo. 585; Strutt v. Railroad, 18 App.Div. (N.Y.) 134. (4) The charge of negligence, that the mud scraper was allowed to become bent over, should be disregarded, because the stumbling over the mud guard is itself a sufficient, certain and operating cause of the fall, and no other explanation is needed. Taylor v. Yonkers, 105 N.Y. 202; Wharton's Negligence, sec. 85.
Action for personal injuries, tried in the circuit court of the city of St. Louis. At the close of the plaintiff's evidence the court nisi instructed the jury that upon the proof adduced plaintiff was not entitled to recover. Thereupon plaintiff took an involuntary nonsuit with leave to move to set same aside. Thereafter, his motion to set aside this nonsuit being by the court overruled, he appealed.
The negligence pleaded is that which the courts, for convenience, have denominated common-law negligence as distinguished from negligence bottomed upon the violation of a statute or an ordinance. The injuries accrued to plaintiff from his having tripped upon a mud scraper, and having been thereby thrown with considerable violence to the brick pavement, sustaining in his fall injuries to the wrists of both hands. This mud scraper was maintained outside of the entrance to the office of defendant. The specific elements of the negligence alleged by plaintiff and on which he bottoms his right to recover, are thus succinctly stated by him in his petition:
The answer was (1) a general denial; (2) a plea of assumption of risk, and (3) contributory negligence of the plaintiff.
The locus in quo is graphically shown by the picture on the following page.
[SEE ILLUSTRATION IN ORIGINAL]
Plaintiff asked for $ 15,000 as damages; hence our jurisdiction. The salient substantive facts as shown by the evidence of the plaintiff (defendant, of course, put in none) are fairly set out by plaintiff, who, in fairness to himself, we permit to speak for himself; adopting as ours his statement of the facts, with minor emendations:
Defendant's office building was situated on defendant's premises on the west side of Kingshighway between the tracks of the Missouri Pacific and the Frisco railroads. Kingshighway ran north and south and at the time of the injury to plaintiff October 7, 1910, a viaduct was being constructed along Kingshighway, across the railroad tracks, and in front of defendant's premises. The office building in question was of brick and the main line of it was eight feet west of and parallel with the west line of Kingshighway. In other words, the building sat eight feet back from the property line. In front of defendant's building all the way out to where the construction work was going on, about twenty-six feet, there was a uniform pavement of brick, without any curbing or breaks. This building was constructed with rooms on either side of a central hall. The entrance to the building was by three or four steps, and on either side of the approach to these steps there was a mud scraper, intended for use of persons entering the building in scraping the mud from their shoes. These mud scrapers, one upon the north and one upon the south of the entrance, were about seven feet apart and were about ten inches long and stood at right angles to the line of the lowest step and about two feet in front of, that is, east of it, and were entirely surrounded by the brick-paved space. Each scraper consisted of an oak plank ten inches wide by one and five-eighths inches thick inserted in the ground with its width running east and west, the eastern edge of the scraper being three feet, eight and one-half inches west of the western line of Kingshighway. The top of the wooden post stood five inches above the ground and to this post there was bolted a piece of sheet iron ten inches long and three-sixteenths of an inch thick, which stood, when in its upright position, about two and one-fourth inches above the wood. For some two weeks or more prior to the 7th of October, 1910, the iron portion of the northernmost scraper had been bent down towards the south so that it stood horizontally about four inches above the pavement and extending three-eighths inches southwardly from the wooden post to which it was fastened. Plaintiff was an employee of the defendant, whose duties, amongst other things, it was to go to different localities in the city where defendant was delivering brick for paving purposes and to there receipt for the brick as it was delivered by the wagons. On the day before his injury, he had been receiving brick at a locality on Penrose street, and had been instructed by his immediate superior to call up the office to ascertain what job he was to go to the next day. This the...
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