Scoffin v. Abernathy Furniture Company

• Decision Date: 13 June 1914
• Citation: 171 S.W. 933,184 Mo.App. 627
• Parties: GEORGE SCOFFIN, Respondent, v. ABERNATHY FURNITURE COMPANY, Appellant
• Court: Kansas Court of Appeals

171 S.W. 933

184 Mo.App. 627

GEORGE SCOFFIN, Respondent, v. ABERNATHY FURNITURE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 13, 1914

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

Reversed.

Battle McCardle and Frank L. Barry for appellant.

(1) The duty was placed on plaintiff by the character of the work being done to make his own inspection. Hulse v. Tel Co., 164 Mo.App. 131; Fleeman v. Bemis Bag Co., 195 Mo.App. 598; Corby v. Tel. Co., 231 Mo. 417; Bradley v. Tea Co., 213 Mo. 331. (2) Plaintiff knew of any danger due to condition of contents of car and defendant did not, and where danger is known to servant master is not negligent in failing to warn him. Hirsch v Freund Bros. Co., 129 Mo.App. 1060; Herbert v. Mound City Boot & Shoe Co., 90 Mo.App. 305; Nugent v Milling Co., 131 Mo. 241. (3) Under all the testimony plaintiff was not entitled to recover. Dunn v. Railroad, 189 Mass. 62, 75 N.E. 75; Rooney v. Railroad, 208 Mass. 106, 94 N.E. 288.

Martin J. O'Donnell and Horace Kimbrell for respondent.

(1) The carload being, by reason of the failure to block the grave vaults, in a condition not reasonably safe at the time plaintiff was assigned to work therein, it is immaterial how or by what means the unsafe condition arose, since it was the absolute duty of defendant to exercise ordinary care to provide plaintiff with a reasonably safe place in which to work. Shearman & Redfield on Negligence (5 Ed.), sec. 194; Vaughan v. Railroad, 61 A. 695; Gregg v. Railroad, 147 Ill. 550; Clark v. Foundry Co., 234 Mo. 436; Blankenship v. Paint Co., 154 Mo.App. 492. (2) A master may not delegate duties personal to himself to a servant; neither can he delegate such duties to the servants of a shipper or carrier. Telban v. Bullard, 94 F. 781; Labatt, Master & Servant, sec. 1514; Bender v. Railroad, 137 Mo. 240; Tateman v. Railroad, 96 Mo.App. 448. (3) The cases cited by defendant do not correctly declare the law in this jurisdiction where the rule that the master must perform his duty to see that the place to which he assigns his servant to work is reasonably safe is impersonal and all embracing applying alike to all masters and similarly protecting all servants. Corly v. Telephone Co., 231 Mo. 439; D'Almeida v. Railroad, 209 Mass. 81; Spaulding v. Co., 159 Mass. 587. (4) The instructions given for plaintiff were correct. Every conceivable phase of defendant's defenses were submitted in the ten instructions given at its request and no error was committed in refusing any. Doyle v. Trust Co., 140 Mo. 10; Buck v. Railroad, 108 Mo. 179.

OPINION

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries he alleges were caused by the negligent failure of defendant, his master, to exercise reasonable care to furnish him a reasonably safe place in which to work. The answer is a general denial and pleas of assumed risk and contributory negligence. Verdict and judgment were for plaintiff. Defendant appealed and argues that error was committed in the overruling of its demurrer to the evidence. Defendant is an extensive dealer in furniture in Kansas City and plaintiff a teamster of more than twenty years experience who had been working for defendant continuously for four years before his injury, driving a team, and as part of his duties, helping to unload cars of bulky and heavy merchandise. His injury occurred while he and two other employees of defendant were unloading steel grave vaults from a car which had been shipped to defendant from an eastern city and was standing on a team track about 300 feet from defendant's place of business. That morning the foreman of plaintiff ordered him to haul the grave vaults from the car and told him that other workmen would be sent over to help him unload. Two were sent, one, William Rankin, described as defendant's "head man in loading and unloading cars," and the other a laborer of experience in that kind of work. There is no complaint that the three men were not a sufficient force, nor that they were lacking in experience or skill in handling heavy and bulky freight, but plaintiff claims that none of them had had experience in unloading a carload of grave vaults as this was the first carload defendant had received. They had handled smaller lots of such vaults and were familiar with their size, form, weight, and the manner of handling them, though not with the customary method of loading them in car lots. Each vault was seven feet long, three feet wide, three feet deep, weighed 450 pounds and was encased in a burlap covering to protect its finished surfaces. Its top or lid projected two inches beyond its sides and ends and when a vault was standing on end the protecting flange of the top prevented the vault from standing perpendicularly and caused its top end to lean five or six inches to one side of a perpendicular line. There were fifty vaults in the car, half in one end and half in the other, the vaults in each division standing on end in parallel rows with their top sides facing the car end and their bottoms facing the middle of the car in which there was an open space between the two divisions of the load. Each row contained three vaults placed close together and transverse braces consisting of 2x4 timbers had been placed across the face of each row, one at the top and one at the bottom, and spiked at their ends to the sides of the car. Each row, because of the projecting flanges of the vaults, leaned towards the middle of the car and the braces were put in to keep its members in place and to prevent them toppling forward during the transportation. The sole criticism of this method of loading offered in the evidence of plaintiff relates to the omission of the loaders to place another transverse 2x4 timber under the forward edge of each row and nail it to the car floor in order that the vaults might stand perpendicularly and not be so likely to fall over on the unloaders who necessarily would have to begin their operations in the open space in the middle of the car and if such chocking timbers were omitted would be compelled to face and work upon rows of vaults leaning towards them. In the present instance the loaders had put in no blocking and the unloaders were compelled to work on successive rows of vaults leaning towards them. They removed all of the load from the south end of the car and were working on the second row in the north end when the accident occurred. Much is said in the evidence about the condition of the...