Morgan v. Sunflower Zinc Company
| Decision Date | 20 December 1917 |
| Citation | 199 S.W. 590,199 Mo.App. 26 |
| Parties | A. L. MORGAN, Defendant in Error, v. SUNFLOWER ZINC COMPANY, Plaintiff in Error |
| Court | Missouri Court of Appeals |
Error to Jasper Circuit Court.--Hon. R. A. Pearson, Judge.
AFFIRMED.
Judgment affirmed.
Sheppard & McCammon for plaintiff in error.
Wolfe & Burnett for defendant in error.
The plaintiff in error comes to this court complaining of a judgment for $ 700 against it in a suit filed by the defendant in error on account of personal injuries based on a petition alleging negligence on the part of the plaintiff in error is not furnishing a reasonably safe and suitable appliance with which it ordered the defendant in error to work as its employee. A part of a finger and the bone in one thumb were lost on account of the injury and no claim is made that the verdict is excessive.
I. It is first contended that the trial court erred in refusing an instruction directing a verdict in the defendant's favor at the close of the trial. This requires a brief statement of the plaintiff's evidence, in approaching which, the rule should be stated that in passing upon a demurrer to the evidence every reasonable inference of fact arising from the evidence is to be taken as true which tends to establish the plaintiff's case. [Hall v. Manufacturers' Coal and Coke Co., 260 Mo. 351, 365, 168 S.W. 927.]
Without going into detail it is sufficient to say that the plaintiff's evidence shows that he was an employee of the defendant working under the direct personal observation of its foreman; that defendant had an appliance by which it tightened certain belts in its mill by prying or wedging apart the shafts; that the appliance worked on the principle of a lever which required a man to take hold of the end of a gas pipe and press downward; that this appliance was not bolted at a place where it could slip off and that if it did slip off at the time an employee was bearing his weight on the end of the lever--which was a gas pipe--it would permit him to fall to the floor of the mill; that plaintiff noticed it was slipping and that there was only about an inch left upon which it would be held up; that he called the attention of defendant's foreman to it, and that the foreman looked at it and said he would bolt it but that he guessed it would hold in order to tighten the shaft, and thereupon ordered the plaintiff to press down on the gas pipe so that a wedge might be driven in to hold the machinery apart, which wedge was driven or started to be driven by the foreman.
The charge of negligence in the petition was that defendant had negligently and carelessly failed to have the board or plank securely fastened, and that it had been in that condition for a long time, and that defendant knew of the same or could have known by the exercise of ordinary care. It is further alleged that plaintiff exercised reasonable care in the performance of his work, to which allegation we will refer in discussing an instruction.
The plaintiff in error charges that the condition of this appliance was open and obvious, that it was known to the plaintiff, and that a man of ordinary prudence would not have continued to remain in the position in which plaintiff was knowing that the lever upon which his entire weight was resting was liable to slip at any time, citing Trainer v Sphalerite Mining Co., 243, Mo. 359, 148 S.W. 70. The facts of that case are easily distinguished from those in our case. There the servant was furnished with a number of pieces of dynamite to be used by himself. There was no request made for another piece of dynamite, to be used in place of the one he did use, nor was there any assurance or direction on the part of the master to use the particular piece which injured him. In the case at bar the evidence of plaintiff shows that he did know or suspect that the lever was likely to slip off which would permit him to fall with his weight on the end of it, and he called the attention of the defendant's foreman to this condition who looked at it and told him he guessed it would hold and to press down on it. It was for the jury to say whether the manner in which the defendant permitted this lever to be used was a reasonably safe method. The jury having found that it was not a reasonably safe method, but negligent, the only escape from liability under the Missouri decisions would be that plaintiff was guilty of contributory negligence on the theory that the danger was so apparent and glaring that no ordinarily prudent man would have placed his weight on the lever knowing its condition, there being no affirmative plea of contributory negligence. And in passing on this question it will not do to say that a servant is guilty of contributory negligence as a matter of law because he suspects that an instrumentality is...
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