Robertson v. Hammond Packing Co.

• Decision Date: 04 December 1905
• Citation: 91 S.W. 161,115 Mo. App. 520
• Parties: ROBERTSON v. HAMMOND PACKING CO.
• Court: Missouri Court of Appeals

91 S.W. 161

115 Mo. App. 520

ROBERTSON v. HAMMOND PACKING CO.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

1. MASTER AND SERVANT—INJURIES TO SERVANT —QUESTION FOR JURY.

In an action for injuries to a servant owing to his having fallen through an opening between joists in defendant's building, evidence held sufficient to sustain a finding of negligence on the part of defendant.

2. SAME—ASSUMPTION OF RISK—PROMISE TO REMOVE DANGER.

In an action for injuries to a servant, owing to his having fallen through an opening between joists in defendant's building, it appeared that plaintiff had informed the foreman two or three weeks previous that there should be runways constructed for plaintiff to walk upon, and that the foreman stated that he would have it done, and plaintiff testified that he thought that he could continue his duties with safety by the exercise of care. Held, that there was assumption of risk.

3. SAME—KNOWLEDGE OF DANGER.

Where a master has failed to use ordinary care to protect a servant from danger, the servant's knowledge of the failure will not preclude his recovery from injuries sustained thereby, so long as the danger was not so glaring as to be apparent to any man of ordinary prudence,

and he supposed that he could continue his duties by the use of ordinary care and caution.

4. DAMAGES — PERSONAL INJURIES—INSTRUCTIONS.

In an action for injuries, an instruction allowing damages for such pain and anguish as plaintiff had already suffered and which "he may hereafter suffer" was not erroneous by reason of the use of the word "may."

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by John R. Robertson against Hammond Packing Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Vinton Pike, for appellant. Grant S. Watkins, for respondent.

ELLISON, J.

This action is for personal injury suffered by plaintiff on account of the alleged negligence of the defendant. Plaintiff recovered judgment in the trial court. Defendant is a meat-packing establishment in the city of St. Joseph, and plaintiff was one of its employés in the killing department at the time of his injury. He worked over the cattle and sheep killing floor, which was reached by means of a ladder, and his principal duties were to oil the machinery and to turn on and off electric lights, as either act might be necessary. This required him to walk from one place to another, and at the time of his injury he was going across, overhead, to the switch to turn off the light. Defendant had not constructed any passage way (called "runway" by witnesses) from one point to another, and plaintiff walked over by stepping from one joist to another. At a point near by a water tank there was a fall in this over head structure of nearly 12 inches, and in attempting to step down to that level plaintiff fell through. He was caught in the hip by one of the metal hooks upon which carcasses were hung, and fell thence to the floor below. He was seriously hurt.

The question whether the place described was a safe place to work, by reason of no runways being provided from one point to another, was duly submitted to the jury. We consider defendant's negligence in this respect to have been amply shown, and that it is liable to plaintiff's action, unless excused by the consideration that plaintiff was fully acquainted with the place, the surroundings, and the provisions made for his safety. On that phase of the case the evidence tended to show that plaintiff had informed the foreman, some two or three weeks previous, that there should be runways constructed, and that the foreman answered that he would have it done. It is true that plaintiff knew they had not been constructed, and yet he continued to work. But in this connection he stated that he thought he could continue his duties with safety by the exercise of care. Within the principle of Huhn v. Ry. Co., 92 Mo. 440, 4 S. W. 937; and Wendler v. People's Furnishing Co., 165 Mo. 527, 65 S. W. 737, the plaintiff made a prima facie case by that showing. Those cases have been constantly followed by the supreme and ...