Walsh v. Union Quarry and Construction Company

• Decision Date: 29 July 1920
• Citation: 223 S.W. 1082,205 Mo.App. 159
• Parties: JOHN M. WALSH, Respondent, v. UNION QUARRY AND CONSTRUCTION COMPANY, Appellant
• Court: Missouri Court of Appeals

223 S.W. 1082

205 Mo.App. 159

JOHN M. WALSH, Respondent, v. UNION QUARRY AND CONSTRUCTION COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 29, 1920

[Copyrighted Material Omitted]

205 Mo.App. 159 at 170.

Original Opinion of March 2, 1920, Reported at: 205 Mo.App. 159.

Motion overruled.

ALLEN J. Reynolds, P. J. and Becker, J., concur.

OPINION

SEPARATE CONCURRING OPINION ON MOTION FOR REHEARING.

ALLEN J.--

I concur in the result reached by our Commissioner herein, but not in all of the language employed in the course of the opinion. The case is one by no means free from difficulty, but I am of the opinion that the evidence, when viewed in the light most favorable to plaintiff, as it must now be viewed, suffices to make the question of defendant's negligence one for the jury. It is true that the work prosecuted by the defendant, in the course of which plaintiff sustained his injuries, was of such nature as to cause the character of this ledge, upon which plaintiff was working when injured, to be changed, from time to time, as the work progressed; i. e. the slope and character of the surface of the ledge would be altered from time to time by the blasting out of rock therefrom. But though this be true, it does not necessarily follow that a recovery is precluded in this case upon the ground that the place where plaintiff was working at the time of his injury was one changing in character as the work progressed; for the suit does not proceed upon the theory of a negligent breach of duty upon the part of the master in failing to exercise ordinary care to furnish a reasonably safe place for plaintiff to work.

In Bennett v. Lime Co., 146 Mo.App. 565, 124 S.W. 608, in referring to the rule to be applied in those cases where the particular work to be prosecuted is one which renders plaintiff's place unsafe, or where the danger is transitory and passing only, and arises from the manner in which the work is being prosecuted rather than from the nature of the place itself, it is said, by NORTONI, J: "And, then, too, an element of non-liability frequently adverted to in such cases is the fact that the master has given the work entirely in the charge of the servant and permits him to perform it in his own way. In such circumstances, if the servant is injured as a result of a transitory peril which inheres in the work for which he was employed and is prosecuting, according to his own discretion, without a pointed direction or other specific negligence on the part of the master, it is frequently declared that the rule requiring a reasonably safe place does not obtain or that the servant has assumed the risk as one ordinarily incident to the employment." (Italics ours.)

This and other portions of the opinion in the Bennett case are quoted and relied upon by appellant here; but we think that the law as declared in that opinion is not fatal to a recovery herein, as appellant contends; for the evidence for plaintiff makes it appear that he was not injured as a result alone of a transitory peril inhering in the work, while he was prosecuting the same according to his own discretion, and "without a pointed direction or...