Sullivan v. Hannibal & St. J.R. Co.

• Decision Date: 09 November 1891
• Parties: Sullivan v. The Hannibal & St. Joseph Railroad Company, Appellant
• Court: Missouri Supreme Court

17 S.W. 748

107 Mo. 66

Sullivan v. The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri, First Division

November 9, 1891

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

The following instructions were given for plaintiff: "1. If you believe from the evidence that, at the time and place in evidence, the plaintiff was in the employment of, and at work for, the defendant, under the orders, direction and control of a foreman who acted for the defendant in superintending the men employed and the work then being done in the removal of the roof of defendant's icehouse; that while so engaged in that work a defect was discovered in the tie-beam supporting the scaffolding in evidence; that plaintiff did not know of both the defect and the increased danger arising therefrom; that defendant's said foreman did know of said defect and its dangerous character; that with such knowledge said foreman assured the plaintiff and his fellow-workmen that the defect did not render the scaffolding dangerous or unsafe, or stated to, or in the hearing of, plaintiff that said scaffolding was all right, or words to that effect; and that the plaintiff, relying upon such statements of said foreman, and being directed by said foreman to do work which obliged him to go upon said scaffolding, stepped upon said scaffolding, which, on account of this defect, gave way and thereby precipitated the plaintiff to the ground; and that in consequence thereof he was injured, then the plaintiff was not guilty of such contributory negligence as will preclude a recovery in this case, and you should find for the plaintiff unless you further find that said defect and its dangerous character were so obvious that a man of ordinary care and prudence would not have stepped upon said scaffolding.

"2. It was the duty of the defendant to use ordinary care to furnish for the use of the plaintiff and his fellow-workmen a scaffolding that was reasonably safe for the purposes for which it was intended and used; and if you find that defendant negligently failed to perform this duty, and furnished a scaffolding that was unsafe; that the defendant's foreman in charge of the men and the work knew of the unsafe condition of said scaffolding, and that with such knowledge upon the part of its said foreman, the said foreman further negligently failed to either remedy the defect, or warn the plaintiff of the danger of going upon said scaffolding, and that the plaintiff, while in the observance of ordinary care and without negligence upon his part, and without knowledge of the unsafe condition of said scaffolding, went upon said scaffolding in the performance of the duty assigned him, and by reason of the defect therein was thrown to the ground and injured, then the plaintiff is entitled to recover.

"3. If the defendant's foreman knew of the defect in the scaffolding in proof, and the danger likely to ensue therefrom, it was his duty, if reasonably within his power to remedy such defect, or warn the plaintiff of the danger and thereby prevent the injury consequent therefrom.

"4. The fact, that the plaintiff had some knowledge or notice of a defect in the tie-beam supporting the scaffolding in evidence, may properly be considered by you in determining the question as to whether, by going upon the same while engaged in the work in which he was employed, the plaintiff was guilty of such negligence as contributed to his injury yet this fact alone will not preclude a recovery upon his part, unless the danger from such defect was at the time so obvious or glaring as to deter a man of ordinary prudence from going where plaintiff went, and doing what he then did in the performance of the duty assigned him.

"5. The words, ordinary care, as used in these instructions, is that degree of care which a person of ordinary prudence would observe under like circumstances; and negligence, as used in these instructions, is the omission or failure of such a person to observe such care.

"6. The court instructs the jury that if you should find for the plaintiff you should assess his damages at such sum as you may believe him entitled to under the evidence in this case, but in an amount not exceeding $ 10,000. And, in arriving at the amount of damages, you should take into consideration the nature and extent of the injuries received by plaintiff, together with the pain and suffering, if any, caused thereby."

To which instructions and each of them, the defendant objected; which objections and each of them were by the court overruled, and said instructions given to the jury. To which action and ruling of the court in overruling said several objections and giving said instructions, the defendant then excepted and now excepts.

The following instructions were given for defendant: "1. The jury are instructed that they cannot infer or presume negligence on the part of the defendant, from the happening of the accident to plaintiff. It devolves upon the plaintiff to establish by a preponderance of the evidence: First. That the defendant was guilty of negligence in not exercising ordinary care to provide plaintiff with a safe and sufficient staging on which to stand; second, that plaintiff's injuries resulted solely from such negligence on the part of the defendant; and, third, that plaintiff did not know, and could not, by the exercise of ordinary care and prudence, have known of the unsafe and insufficient condition of said staging, if it was, in fact, unsafe and insufficient; and, unless the plaintiff has established each and all of these facts by a fair preponderance of all the evidence, your verdict must be for the defendant.

"2. If the jury believe from the evidence that, at the time of the accident to the plaintiff, the staging referred to in the evidence was in such a condition that it could be used with safety by a person exercising ordinary care and prudence, they must find for the defendant.

"3. The court instructs the jury that the plaintiff, in assisting to remove said section of the roof which had been used as a part of the staging off from over said broken tie-beam, was bound to exercise that degree of care and caution which would have been observed by a person of ordinary prudence, under similar circumstances; and, if you find that the plaintiff might by the exercise of ordinary care have avoided injury, your verdict must be for the defendant.

"4. If the staging provided by defendant to enable plaintiff and his fellow workmen to take down and remove the roof of the icehouse mentioned in the petition was defective, insufficient and unsafe, and plaintiff knew it, and notwithstanding such knowledge, 'and knowing same had not been repaired,' ventured upon and used said staging in removing said roof, or a part thereof, then plaintiff cannot recover in this case, although the jury may believe from the evidence that said staging could easily have been repaired, and that defendant failed to have the same done."

The following instructions asked by defendant were refused: "5. The court instructs the jury that, under the pleadings and the evidence in this case, the verdict must be for the defendant.

"6. If the jury believe from the evidence that Sullivan knew that the tie-beam was broken or cracked before he stepped on the same, then the verdict must be for the defendant.

"7. If the jury believe from the evidence that, at the time of the accident to plaintiff, the staging mentioned in evidence was in such a condition that it could not, with reasonable care, be used with safety, and such unsafe condition was known to the plaintiff, or, by the exercise of ordinary care could have been known to him prior to the accident, they must find for the defendant.

"8. If the tie-beam mentioned in plaintiff's petition was weak and defective as therein stated, and plaintiff, while assisting in removing the section of the roof which was over the same, stepped upon the said tie-beam and the same gave way, and plaintiff by reason thereof fell and received the injuries complained of thereby, then he is not entitled to recover, and your verdict will be for the defendant.

"9. If you find from the evidence that the defendant had an abundance of lumber and material, out of which a safe and secure staging might have been constructed, which they were at liberty to use for that purpose; and that the plaintiff and his fellow-workmen, including the foreman Prather, instead of making use of such materials, chose to make use of the tie-beam in said building to aid them in erecting the staging; and that, in consequence of the fact that said tie-beams were not sufficiently strong and suitable for that purpose, the plaintiff fell and was injured, your verdict must be for the defendant.

"10. The defendant, in selecting material for tie-beams in said building, was only bound to provide such as was suitable and sufficient to answer the purpose for which tie-beams are intended, and for which they were placed in said building. They were not bound to be strong enough to permit the same being used for a purpose for which they were never intended.

"11. The plaintiff in his testimony admits that he knew that the tie-beam mentioned in evidence had cracked at about ten o'clock on the day he was injured, and that he knew that one of the sections of the roof had been let down and placed and kept over the said beam, to keep the men from stepping on it; and the court instructs you that the plaintiff, having this knowledge, was charged with notice of the existence of a defect in said tie-beam, and he would be required to examine and determine for himself the character and extent of this defect before trusting his weight upon it, and should be held to know each and every fact in regard to said defect, which such...