Steinhauser v. Spraul

• Decision Date: 19 March 1895
• Parties: STEINHAUSER v. SPRAUL.
• Court: Missouri Supreme Court

30 S.W. 102

127 Mo. 541

STEINHAUSER v. SPRAUL.

Supreme Court of Missouri.

March 19, 1895.

INJURIES TO DOMESTIC SERVANT — ASSUMPTION OF RISKS.

A domestic servant, who had several times used a ladder to ascend to a loft, and knew that the ladder was defective, cannot recover for injuries caused by its defects while she was again using it for the same purpose. 28 S. W. 620, affirmed. Brace, C. J., and Gantt and Burgess, JJ., dissenting.

In banc. Appeal from circuit court, St. Charles county.

Action by Anna Steinhauser against Anna M. Spraul. From a judgment for plaintiff, defendant appealed. Reversed in division (28 S. W. 620), and transferred to the court in banc. Reversed.

Broadhead & Hezel and H. A. Haussler, for appellant. J. Hugo Grimm, for respondent.

PER CURIAM.

The judgment herein is reversed, and the petition dismissed, as directed in the foregoing opinion of SHERWOOD, J., in division No. 2.

ROBINSON, J., concurring with Judge SHERWOOD in the opinion. MACFARLANE, J., in the third paragraph. BARCLAY, J., specially. BRACE, C. J., and GANTT and BURGESS, JJ., dissenting.

BARCLAY, J. (concurring).

Plaintiff, according to her testimony, was employed as a servant to do general housework. In her petition she states that she was employed as a cook, and that, "while performing the duties as cook, * * * under defendant's directions, defendant carelessly and negligently ordered plaintiff to climb up a ladder, and into the pigeon loft," etc. Plaintiff was hurt by falling to the ground while attempting to execute the order of defendant to get the pigeons. The order, by plaintiff's account, was accompanied with a remark about having the pigeons cleaned before the dishes were washed; so that it is evident that the pigeons were wanted for cooking, and that the plaintiff was directed to get them for that purpose. The allegation of the petition is that plaintiff was the servant of Mr. Spraul, the defendant's husband; but that is evidently only a statement of the effect of the employment, for in her testimony plaintiff states that the defendant actually engaged her for service in the family. Defendant had general direction of the household affairs. Plaintiff had been working as a domestic in the Spraul family, as above described, two years and five months, when her mishap occurred. During that time she had "got the pigeons out of the loft four or five times a year," as she said. She also admitted that she had previously used the same ladder to reach the loft (from which she fell) "four or five times." Prior to using that ladder, she had used, for the same purpose, an older one, since discarded. The pigeon loft was in the upper part of a shed in the yard of the Spraul premises, as has been described. The ladder plaintiff had to use was not defective. It was made for the purpose, and was new. The only supposed defect charged against it is that it was too long to reach the loft unless placed at a great angle, so plaintiff had to set it sidewise against another shed. Plaintiff admitted that defendant had cautioned her as to the use of the ladder. Her words were thus given by pla...