Shore v. American Bridge Company of New York

• Decision Date: 27 March 1905
• Citation: 86 S.W. 905,111 Mo.App. 278
• Parties: DOLLIE E. SHORE, Respondent, v. AMERICAN BRIDGE COMPANY OF NEW YORK, Appellant
• Court: Kansas Court of Appeals

86 S.W. 905

111 Mo.App. 278

DOLLIE E. SHORE, Respondent, v. AMERICAN BRIDGE COMPANY OF NEW YORK, Appellant

Court of Appeals of Missouri, Kansas City

March 27, 1905

Appeal from Jackson Circuit Court.--Hon. Shannon C. Douglass, Judge.

AFFIRMED.

Judgment affirmed.

Porterfield Sawyer & Conrad for appellant.

(1) The defendant made timely objection to the introduction of any evidence on the ground that the petition does not state facts sufficient to constitute a cause of action. Anderson v Box Co., 103 Mo.App. 382; Lucey v. Oil Co., 129 Mo. 32; Bradley v. Railway, 138 Mo. 293. (2) Plaintiff failed to prove by evidence that her deceased husband's fall from the scaffold was caused by the negligence of the defendant. As to what caused him to fall the evidence leaves us in the dark. Warner v Railway, 178 Mo. 123, 131-134; Cothron v. Packing Co., 98 Mo.App. 343; Breen v. Cooperage Co., 50 Mo.App. 202, 211-213; Brown v. L. & L. Co., 65 Mo.App. 163, 166; Plefka v. Knapp, Stout & Co., 145 Mo. 316, 320, 321; Hudson v. Railway, 101 Mo. 13, 14; Fuschs v. St. Louis, 167 Mo. l. c. 635. (3) The burden is on plaintiff to show by evidence that the injuries to her husband were caused by the negligence of defendant, or to show facts from which it might be reasonably inferred that the negligence of defendant caused the injuries to plaintiff's husband. The record does not disclose the cause of Mr. Shore's fall and the court erred in submitting the case to the jury. Cothron v. Packing Co., 98 Mo.App. 343; Breen v. Cooperage Co., 50 Mo.App. 212; Brown v. L. & L. Co., 65 Mo.App. 166; Holman v. Railroad, 62 Mo. 564; Plefka v. Knapp, Stout & Co., 145 Mo. 321. (4) The evidence does not show any causal connection between the negligence charged in the petition and the injury. Brown v. L. & L. Co., 65 Mo.App. 166; Nugent v. Milling Co., 130 Mo. 251. (5) The master may choose his own method of or appliances for doing his work. The law does not require him to use any particular kind of tools or appliances, or the best or safest appliances. Iron pipes are in common use as needle beams in bridge building. They are safe appliances, and lighter and more convenient to handle than wooden needle beams. The riveters prefer them over wooden needle beams. Even if they are unsafe, if the servant voluntarily works with them, he assumes the risk in using them. Cothron v. Packing Co., 98 Mo.App. l. c. 349; Holmes v. Brandenbaugh, 172 Mo. 53, 65; Minnier v. Railway, 167 Mo. l. c. 113; Bradley v. Railway, 138 Mo. 293, 302-4; Blanton v. Dold, 109 Mo. 64, 74; Bohn v. Railway, 106 Mo. 429; Berning v. Medart, 56 Mo.App. l. c. 449; Jackson v. Railway, 104 Mo. 448. (6) Mr. Shore was employed as a riveter. His duties as such required him to work on a swinging scaffold. He knew it was a dangerous service. He knew the riveting crews were using iron pipe for needle beams. He used one of them for days before he fell from the scaffold. Even if Mr. Shore was required by the defendant to use iron pipe for needle beams, he knew how the work was being done. The risk of falling from the scaffold so constructed was one ordinarily and usually incident to the work. Holmes v. Brandenbaugh, 172 Mo. l. c. 65; Bradley v. Railroad, 138 Mo. l. c. 302; Holloran v. Iron & Foundry Co., 133 Mo. l. c. 477. (7) If the iron pipes were unsafe appliances, they were unsafe only because they were round. They were obviously round, and therefore, if unsafe, they were obviously unsafe. It is difficult to conceive of a case to which the doctrine of assumption of risk would apply more fully or more forcibly than to this case. Anderson v. Box Co., 103 Mo.App. 382, 385; Cothron v. Packing Co., 98 Mo.App. 343, 349; Watson v. Coal Co., 52 Mo.App. l. c. 373; Berning v. Medart, 56 Mo.App. 473; Moore v. Mill Co., 55 Mo.App. l. c. 496; Lucey v. Oil Co., 129 Mo. 32, 40; Holloran v. Iron & Foundry Co., 133 Mo. 477-479; Steinhauser v. Spraul, 127 Mo. 541, 563, 564, cited and approved in these very recent cases: Roberts v. Telephone Co., 166 Mo. l. c. 379; Minnier v. Railway, 167 Mo. l. c. 113; Holmes v. Brandenbaugh, 172 Mo. l. c. 65. (8) It is not the duty of the master to warn the servant of dangers that are open and obvious. For patent dangers the master is not liable. Burnes v. Railway, Co., 129 Mo. 41, 51; Holmes v. Brandenbaugh, 172 Mo. 53, 65; Harff v. Green, 168 Mo. 308, 313; Holloran v. Iron & Foundry Co., 133 Mo. 477-480; Nugent v. Milling Co., 131 Mo. 245, 255, 256; Steinhauser v. Spraul, 127 Mo. 563-564; Fugler v. Bothe, 117 Mo. 475, 501; Breen v. Cooperage Co., 50 Mo.App. 204, 212. (9) Even if defendant knew that Mr. Shore was using iron pipe for needle beams and that they were unsafe, the uncontroverted evidence is that the deceased had the same knowledge. The latter had the same knowledge of the risk as defendant and used the pipes without objection. This being true, the demurrer should have been sustained. Watson v. Coal Co., 52 Mo.App. 373; Lucey v. Oil Co., 129 Mo. 40. (10) Mr. Shore personally, and with the assistance of the remainder of his crew, put the scaffold boards on the iron needle beams, and if one of them worked off, he, without the assistance of any one, worked it off and fell to the ground and was thereby injured. The needle beams upon which he put his boards were suspended unevenly, one higher than the other. (Rec., pp. 34, 35.) In all of this he was guilty of that degree of contributory negligence which should have compelled the court to sustain the demurrer. He made his own bed and he must lie in it. Nolan v. Shickle, 69 Mo. 336; O'Donnell v. Patton, 117 Mo. 13, 31; Bradley v. Railway, 138 Mo. l. c. 307.

Poston & Rucker and Flournoy & Flournoy for respondent.

(1) The evidence was ample to show that the board fell because it slipped off the beam at one end and that thereby Shore fell and was killed. Buesching v. Gas Co., 73 Mo. 219; Soeder v. Railway, 100 Mo. 673, 681; Fughler v Bothe, 117 Mo. 475, 485; Schultz v. Moon, 33 Mo.App. 329; Lee Right v. Aherns, 60 Mo.App. 118. (2) The mere fact that the servant has knowledge of defective appliances or implements which he uses, will not prevent him from recovering for an injury received by reason of such defects, unless they are of such a character as to threaten immediate danger, or where it is reasonable to suppose that the appliance may be safely used by the exercise of care and caution. Halliburton v. Railway, 58 Mo.App. 27, 33; Monahan v. Coal Co., 58 Mo.App. 68; Beard v. Car Co., 72 Mo.App. 583; Smith v. Coal Co., 75 Mo.App. 177; Booth v. Air Line, 76 Mo.App. 516; Devore v. Railway, 86 Mo.App. 431, 435; Thompson v. Railway, 86 Mo.App. 141; Cardwell v. Railway, 90 Mo.App. 31; Edwards v. Paving Co., 92 Mo.App. 221, 227; Nash v. Dowling, 93 Mo.App. 156, 163; Kane v. Falk Co., 93 Mo.App. 209, 216; Weldon v. Railway, 93 Mo.App. 668, 673; Haworth v. Railway, 94 Mo.App. 215, 221; Hester v. Packing Co., 95 Mo.App. 16; Prophet v. Kemper, 95 Mo.App. 219, 223; Adams v. Harvesting Co., 95 Mo.App. 111; Parsons v. Packing Co., 96 Mo.App. 372; Weston v. Mining Co., 78 S.W. 1044; Robbins v. Mining Co., 79 S.W. 480; Dean v. Wooden Ware Works, 80 S.W. 292; Carter v. Baldwin, 81 S.W. 204; Huhn v. Railway, 92 Mo. 440, 445; Stephens v. Railway, 96 Mo. 207, 212; Hamilton v. Mining Co., 108 Mo. 364, 375; O'Mellia v. Railway Co. , 115 Mo. 205, 218; Settle v. Railway Co., 127 Mo. 336; Pauck v. Beef Co., 159 Mo. 467, 476; Hurst v. Railway, 163 Mo. 309, 319; Wendler v. Furnishing Co., 165 Mo. 527, 535; Curtis v. McNair, 173 Mo. 280; Cole v. Transit Co., 81 S.W. 1138. (3) The servant must have knowledge not only of the defect but of the danger, and even then will not be precluded from recovery unless the danger is so glaring that there is no reasonable ground to suppose the defective appliance may be safely used with the exercise of care and caution. "This must be so patent that there can be but one conclusion in the minds of ordinary persons." Monahan v. Coal Co., 58 Mo.App. 69; Halliburton v. Railway, 58 Mo.App. 27; Smith v. Coal Co., 75 Mo.App. 177, 181; Devore v. Railway, 86 Mo.App. 429, 435; Cardwell v. Railway, 90 Mo.App. 31, 33; Edwards v. Asphalt Co., 92 Mo.App. 221, 227; Haworth v. Railway, 94 Mo.App. 215, 221; Robbins v. Mining Co., 79 S.W. 480; Dean v. Woodenware Works, 80 S.W. 292, 296; Carter v. Baldwin, 81 S.W. 204, 208; Pauck v. Beef Co., 159 Mo. 447; Settle v. Railway, 127 Mo. 336; O'Mellia v. Railway, 115 Mo. 205. (4) If it is reasonable to suppose that by the exercise of great care the servant may escape injury in the use of the defective appliance, his knowledge of the defect does not preclude a recovery. Herriman v. Railway, 27 Mo.App. 435, 443; Adams v. Machine Co., 95 Mo.App. 111, 119; Stoddard v. Railway, 65 Mo. 514, 521; Huhn v. Railway, 92 Mo. 440, 447; Weston v. Mining Co., 78 S.W. 1044, quoting to this effect with approval; Stoddard v. Railway, 65 Mo. 514. (5) The master and servant do not stand upon an equal footing even when they have an equal knowledge of the danger and the servant has a right to rely upon the judgment of the master in furnishing him a tool or appliance. Halliburton v. Railway, 58 Mo.App. 27; Monahan v. Coal Co., 58 Mo.App. 68, 73; Smith v. Coal Co., 75 Mo.App. 177, 181; Thompson v. Railway, 86 Mo.App. 141, 149; Weldon v. Railway, 93 Mo.App. 668, 675; Hester v. Packing Co., 95 Mo.App. 28; Carter v. Baldwin, 81 S.W. 204, 207. (6) The question is, would a man of ordinary prudence, under the circumstances, have used the defective appliance; would it be reasonable to think he could do so and escape injury by exercising care? In determining this the conduct of other workmen, similarly situated, in using the defective appliance is to be considered, as also is the fact of its use for quite a time prior to the accident without resulting harm. ...