Todd v. Watson

• Decision Date: 12 November 1973
• Docket Number: No. 2,No. 56865,56865,2
• Citation: Todd v. Watson, 501 S.W.2d 48 (Mo. 1973)
• Parties: William TODD, Appellant, v. Loyd WATSON and Garnell Watson, Respondents
• Court: Missouri Supreme Court

Page 48

501 S.W.2d 48

William TODD, Appellant, v. Loyd WATSON and Garnell Watson, Respondents.

No. 56865.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1973.

Melvin D. Benitz, St. Charles, for appellant.

W. C. Whitlow, D. James Mariea Whitlow & Riley, Fulton, for respondents.

BRUCE NORMILE, Special Judge.

Plaintiff-employee appeals from jury verdict and judgment in favor of defendants-employers.

Plaintiff was employed by the defendants as a bricklayer in the construction of their home. Plaintiff had been working on a stone fireplace at the time of the alleged injury. Petition alleged that plaintiff was injured when he slipped and fell while carrying a large and heavy stone by himself on wet and slippery ground. Defendants' negligence was submitted on their failure 'to provide: (a) reasonably safe conditions for work, ¹ or (b) reasonably adequate help . . .'

Defendants pleaded plaintiff's contributory negligence by his failure 'to look about him to ascertain where he was walking or stepping . . .' and his failure '. . . to ask the defendants, their agents or employees for help or aid of any sort . . .'

On this appeal, plaintiff asserts error in the giving of Instruction No. 4 which submitted plaintiff's contributory negligence. This Instruction was in the following form:

'Instruction No. 4:

Your verdict must be for the defendants if you believe:

First, plaintiff either: Knew of the conditions for work or had reasonably adequate help; and

Second, plaintiff's conduct, in any one or more of the respects submitted in paragraph first, was negligent; and Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.'

'An essential element of contributory negligence is that the person charged acted or failed to act with knowledge and appreciation, actual or constructive, of the danger of injury which his conduct involved . . ..' Davidson v. International Shoe Co., 427 S.W.2d 421 (Mo.1968). (Emphasis added.) As stated at 65 C.J.S. Negligence § 2(6), p. 469: 'It is, accordingly, well settled that actionable negligence may consist of, or be based on, either omission or commission, or it may consist of both omission and commission. Misfeasance, nonfeasance, or both together may constitute negligence. Negligence may consist of the omission of the performance of a duty, as well as of the improper or careless manner in which a duty is attempted to be performed.'

Section 284, Restatement of Torts 2nd states: 'Negligent conduct may be either: (a) an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another, or (b) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.'

Knowledge of a fact is not itself an act or omission. Thus, plaintiff's knowledge of the conditions for work could not alone constitute negligent conduct. Similarly, an external fact, such as availability of help, is not itself an act or omission. Thus, the external fact submitted, that plaintiff '. . . had reasonably adequate help,' could not constitute negligent conduct on the part of the plaintiff.

Instruction No. 4 did not require a finding in Paragraph First of any act or omission on the part of the plaintiff which could constitute negligent conduct as submitted in Paragraph Second of the Instruction. It certainly did not submit the contributory negligence pleaded. Instruction No. 4 is prejudicially erroneous because it did not submit the ultimate facts of contributory negligence and because it constituted a roving commission to the jury. See Moore v. Quality Dairy Co., 425 S.W.2d 261, 266(10) (Mo.App.1968); Emery Bird Thayer Dry Goods Co. v. J. C. Nichols Co., 427 S.W.2d 492, 498(7) (Mo. banc 1968).

Nonetheless, defendants contend that the judgment should be affirmed because the trial court erred in denying their motion for directed verdict.

In determining this issue, we must consider the evidence in a light favorable to the plaintiff and take his evidence as true, giving him the benefit of all reasonable inferences arising from the evidence, rejecting all unfavorable inferences and disregarding the defendants' evidence unless it aids the plaintiff's case. Vaeth v. Gegg, 486 S.W.2d 625, 628 (Mo.1972); Capriglione v. Southwestern Bell Telephone Co., 376 S.W.2d 205, 206(1) (Mo.1964): '. . . (A)n issue is for the jury to decide unless the evidence and the reasonable favorable inferences therefrom 'are so strongly against plaintiff as to leave no room for reasonable minds to differ. '"' Capriglione, supra, 376 S.W.2d 206(3); Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 700 (Mo.1969).

In support of their contention, defendants first urge that plaintiff's evidence was not sufficient to submit the defendants' negligence to the jury.

Although he is not an insurer, it is the duty of the employer to use all ordinary care to see that the place of work is reasonably safe for his employees and that suitable instrumentalities are provided. Hightower v. Edwards, 445 S.W.2d 273 (Mo. banc 1969); Hulsey v. Tower Grove Quarry & Construction Co., 326 Mo. 194, 30 S.W.2d 1018 (1930). It is also the duty of the employer to furnish a sufficient number of men to do the work with reasonable safety to all those engaged in its accomplishment. Hulsey v. Tower Grove Quarry & Construction Co., supra; Johnson v. Missouri-Kansas-Texas Railroad Co., 334 S.W.2d 41 (Mo.1960); 56 C.J.S. Master and Servant § 308, p. 1070.

On the issue of failure to provide reasonably safe conditions for work, there was evidence that the area where plaintiff fell had been filled with a big tractor, was not graded and was awfully rough; that the ground around the stone pile had filled with water, slush and snow; that the ground where plaintiff fell between the stone pile and stone saw was muddy and sloppy; and that the water tank on the stone saw was sometimes emptied on the ground at the end of the day. There was evidence that plaintiff had objected about the conditions, complaining that: '. . . the stone ought to be gotten out of there and brought in a dry place so we have a decedent place to get them.' There was also testimony that defendants had placed boards under the stones to keep them out of the mud.

On the issue of failure to provide reasonably adequate help, there was testimony that it was the custom for bricklayers to stand in a particular place and have bricks and stones brought to them by laborers; that on this job help in carrying the heavy stones was sometimes provided and sometimes was not provided; that plaintiff had often requested help from the job foreman in carrying these stones; that the stone plaintiff was carrying when he fell weighed 116 pounds, was 48 inches long, 8 inches thick, and 4 inches high; that it required two people to carry or lay such a stone with efficiency and safety; that it was the custom in the area to provide sufficient help to carry such stones; and that rules of the Local Bricklayers Union required two men to carry concrete blocks weighing over 40 pounds.

It may be noted that the above facts are very similar to those in the Hulsey case, supra. Plaintiff there was injured from a fall while he and another...