Schaum v. Southwestern Bell Telephone Co.

• Decision Date: 18 September 1934
• Docket Number: No. 31477.,31477.
• Citation: 78 S.W.2d 439
• Parties: SCHAUM v. SOUTHWESTERN BELL TELEPHONE CO. et al.
• Court: Missouri Supreme Court

78 S.W.2d 439

SCHAUM v. SOUTHWESTERN BELL TELEPHONE CO. et al.

No. 31477.

Supreme Court of Missouri, Division No. 1.

September 18, 1934.

Rehearing Overruled November 16, 1934.

Motion to Modify Opinion Overruled December 21, 1934.

Appeal from Circuit Court, Clinton County; Guy B. Park, Judge.

Action by Joseph Schaum against the Kansas City Telephone Company, a corporation, wherein defendant was dismissed, and the Southwestern Bell Telephone Company, a corporation, was made party defendant. From a judgment for plaintiff, defendant appeals.

Reversed.

Battle McCardle, S. L. Harris, and John Mohler, all of Kansas City (Earl H. Painter, of St. Louis, of counsel), for appellant.

Pross T. Cross and Gerald Cross, both of Lathrop (R. H. Musser, of Plattsburg, and Louis N. Wolf, of Kansas City, of counsel), for respondent.

HYDE, Commissioner.

This case, coming recently to the writer, is an action for damages for an injury to plaintiff's right eye alleged to have been sustained while working in a manhole. Plaintiff was employed by the Kansas City Telephone Company to do underground work; that is, work in connection with laying and replacing underground cables. Before he brought suit, the property and business of the Kansas City Telephone Company was taken over by the Southwestern Bell Telephone Company. At the trial plaintiff (respondent) dismissed as to the Kansas City Telephone Company (hereinafter referred to as the telephone company), and recovered a verdict against the Southwestern Bell Telephone Company for $20,000. From the judgment entered thereon, defendant Southwestern Bell Telephone Company has appealed. It will be referred to as the appellant.

The charges of negligence in respondent's petition were as follows: "He was negligently ordered, directed and required, by said foreman of said defendant Kansas City Telephone Company, to enter said manhole and to chip away the sides of same by using a hammer and chisel without providing him with goggles to wear while so doing. * * * That it was not reasonably safe for plaintiff to be so engaged in the work of so chipping away the sides of said manhole without wearing goggles. * * * Plaintiff being inexperienced in the doing of said work, and being in doubt as to whether or not to so work within and chip the sides of said manhole with said hammer and chisel was reasonably safe * * * complained to said foreman that to so perform said work of chipping away the sides of said manhole without wearing goggles and without being provided with goggles to wear, rendered said work dangerous * * * and there requested said foreman to procure and furnish plaintiff with goggles that he might wear while engaged in said work * * * said foreman and vice-principal negligently and carelessly refused to procure or provide goggles as requested by plaintiff and negligently and carelessly ordered and required plaintiff to go ahead and perform said task and so chip away and enlarge the sides of said manhole without wearing said goggles and negligently and carelessly assured plaintiff that he could perform said work in safety and with reasonable safety to his person and without injury without wearing said goggles, and negligently failed to furnish plaintiff a reasonably safe place in which to work and reasonably safe appliances with which to work, in that it negligently failed to provide and furnish plaintiff with goggles to wear while performing said work."

Appellant first filed a demurrer to this petition, on the grounds that it failed to state a cause of action, and that several causes of action were improperly joined therein, which was overruled. Appellant then filed an answer containing a general denial, a plea of contributory negligence, and a plea of assumption of risk. No pleadings were filed on behalf of the telephone company. Appellant asserts that it cannot be held in this action for a claim in tort against the telephone company, but because of the view we take of the case it will not be necessary to discuss this contention.

Respondent's evidence tends to show that on November 1, 1926, he and two employees of the telephone company, Trigg and Conkle, were enlarging a manhole. This manhole was five or six feet across each way. Its sides, below the surface of the ground, were made of brick and mortar; "brick and cement and concrete." The men first tore off the top with picks and shovels. This took two or three hours. The foreman of their job was not there when they finished. Respondent was then told by the general foreman of the telephone company to get a chisel and hammer and go down in the manhole and remove the brick. Respondent had only worked for the company two or three months, and never had done that work before, but said that during the time he had worked there he had seen other men working in manholes with a hammer and chisel and had noticed that "they always wore goggles in that kind of work." Trigg started to work in the hole and was wearing goggles. Respondent looked for goggles in the tool box, but the only pair he could find was broken. He said to the foreman: "The goggles are broken and I don't want to get down there and work in the manhole without goggles. * * * I ought to have a pair of goggles, the other men has got them; I don't know whether it is right or not for me to get in there without them. * * * You ought to know." The general foreman said: "Well, go ahead, and go to work in there without them. It will be all right and I will get you a pair." Respondent testified: "I knew if other men wore goggles why I was supposed to have them. I didn't know whether it was dangerous or not, but I supposed — that is the reason I asked the foreman to find out." It was twenty-five blocks to the place where the company kept their supplies. The general foreman traveled by street car and had a number of jobs over the whole city to oversee. Respondent went to work in the hole with Trigg. They would chip away mortar and concrete with a hammer and chisel and then pry out the bricks with the same tools. They put the loose bricks on the edge of the hole, and Conkle, who remained on the ground and did not wear goggles, threw them away from the hole. After working an hour and a half or two hours, respondent said that while he was chipping and chiseling concrete and brick "a piece of something struck me in the right eye." It was for the impairment of sight of his eye from this injury that respondent brought suit.

Respondent had formerly been a blacksmith. He said that the only work he had previously done for the telephone company was pick and shovel work. As to the use of goggles prior to that time "when men were in the hole chiseling at that brick and mortar and cement," Conkle testified: "That kind of work, they are supposed to always wear goggles. * * * The Company furnished goggles." He stated that he had not always worn them, but said he was supposed to. Another employee of the appellant, who testified as a witness for appellant, said that it was customary for the men doing that work to use goggles; that goggles were provided in the tool box and they would use them "if they wanted to"; that "each tool box was supposed to have goggles in it, and it was largely up to the foreman of the gang to see they used them or didn't, as to what he thought about it."

Appellant had evidence of contractors that men, engaged in tearing down brick walls of buildings, did not wear goggles. Appellant also had the evidence of its general foreman that he did not allow men to wear goggles in such work in manholes, where there were cables, because the men could not see as well and might strike and ruin a cable. He said: "Goggles are used only when you use two men with sledges * * * working with a chisel, it (dust etc.) won't fly towards him. * * * We always took the top off of a manhole first, that leaves just the sidewalls to get at. You can stand on the bottom of a manhole and work them the same as standing on the floor. You have a good place to stand there and have a chance to handle your hammer and your point. * * * If he was holding a point on concrete and two men were striking with sledges — we had a pair of tongs to hold that with — he had to sit on the ground to hold it and we used to carry goggles for that, because a piece of that steel is liable to fly off and hit you in the eye." He denied having any conversation with respondent about goggles. There was conflicting medical testimony as to whether there was a condition due to an older injury to respondent's eye.

Appellant contends that its demurrer to the evidence should have been sustained because no cause of action was shown. It contends that the telephone company was under no legal duty to furnish goggles; that the risk of getting something in his eyes was incidental to the work respondent was doing himself, and not the result of any negligence on the part of the telephone company; and that, therefore, neither a promise to furnish goggles nor an assurance of safety of the work without them could be a basis of liability or an avoidance of the defense of the assumption of risk. In determining the duty of respondent's employer under this evidence, we must remember that an employer is not an insurer of the safety of his employee. There is some danger of injury in every employment as there is in almost every human activity. An employer is not liable because there is danger in the employment, but only when he is negligent. 18 R. C. L. 545, § 60; 39 C. J. 260, § 381; 3 Labatt's Master & Servant, c. 34. Workmen's compensation acts have been widely adopted, providing compensation for injuries upon an insurance basis, because of the hardships when employees bear the whole burden of injuries, resulting from industrial activity, not occasioned by employers' negligence. However, for an employee to recover damages from his employer, his case must come within the principles of negligence. The general standard of care, by which the duty of...