Whitworth v. Shurk
| Decision Date | 06 June 1917 |
| Citation | 196 S.W. 72,197 Mo.App. 404 |
| Parties | GEORGE C. WHITWORTH, Respondent, v. HENRY SHURK, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
AFFIRMED.
Judgment affirmed.
J. P McCammon and R. M. Sheppard for appellant.
(1) An ordinary ladder which is used from place to place in the course of work and which has no prongs or hooks or other appliances to keep it from slipping, is not a dangerous appliance, but a very simple one and safe in the hands of an experienced man for such uses as ladders are usually applied. Actionable negligence cannot be predicated upon the failure of the employer to maintain hooks or prongs or other guards upon ladders of this character to keep them from slipping while workmen are engaged in work upon them. Blundell v Mfg. Co., 189 Mo. 552; McDonald v. Lovell, 82 N.E. 955; Corcorn v. Milwaukee Gas Light Co., 51 N.W. 328; Sheridan v. Gorham Mfg. Co., 13 L. R. A. (N. S.) 687 and note; Courter v. Tootle-Wheeler, 136 Mo.App. 192; Borden v. Daisy Roller Mills Co., 98 Wis. 407, 74 N.W. 91; LaPierce v. Railroad, 58 N.W. 60; Silvia v. Nixon Mining Drill Co., 51 L. R. A. (N. S.) 337; Cahill v. Hilton, 106 N.Y. 512, 13 N.E. 339; Marsh v. Clickering, 101 N.Y. 396, 5 N.E. 56; Electric Light & Power Co. v. Murphy, 115 Ind. 566, N. E. 30; Meador v. Railroad, 37 N.E. 721; Labatt, Master and Servant, 924a; Dessecher v. Phoenix Mills Co., 98 Minn. 389, 108 N.W. 516; Elliott on Railroads (2 Ed.) sec. 1283; Junior v. Missouri Electric Light & Power Co., 127 Mo. 79; Braden v. Railroad, 174 Mo.App. 587; Hirsch v. Freund, 150 Mo.App. 162; Omans v. Hammond Packing Co., 151 Mo.App. 557; Labatt's Master and Servant, sec. 1144. (2) Plaintiff's instruction No. 1 authorized the jury to find for the plaintiff even though they might find that the defendant was not negligent in placing the ladder and failing to guard the same in any way, if they should find that the defendant was guilty of negligence in failing to notify plaintiff as to the condition of said ladder. The authorities cited under the previous points are applicable to this phase of this instruction. The ladder being a simple appliance, there being no hidden or concealed danger, the work not being extra hazardous and the plaintiff being an experienced man, there was no duty or obligation upon the defendant to notify or warn plaintiff of the condition which the ladder was in at the time he attempted to climb the same. Therefore, the court committed error in permitting the plaintiff to recover upon this single ground of negligence. (3) There was no evidence of a permanent injury or a permanent impairment of plaintiff's working capacity, but upon the contrary the evidence showed that he had worked for two months previous to the trial of this case; his physician testified that it was his opinion that within a year from the accident plaintiff would have fully recovered from his injuries. The instruction upon the measure of damages should have limited plaintiff's right of recovery by reason of his future inability to work to such as it was reasonably probable would result from his injury. Ballard v. Kansas City, 110 Mo.App. 391; Schwend v. Transit Co., 105 Mo.App. 534; Baker v. Independence, 93 Mo.App. 165; Albin v. Railroad, 103 Mo.App. 308; Bigelow v. Railroad, 48 Mo.App. 367; Beasley v. Transfer Co., 148 Mo. 420; Batten v. Transit Co., 102 Mo.App. 85; Smiley v. Railroad, 160 Mo. 629; Gerdes v. Foundry, 124 Mo. 347; Rosencranz v. Railroad, 108 Mo. 9; Chilton v. St. Joseph, 143 Mo. 192; Strohm v. Railroad, 96 N.Y. 306; Curtis v. Railroad, 18 N.Y. 534; Watson on Damages for Personal Injuries, sec. 302. Joyce on Damages, 244.
Perry Post Taylor, Emil Mayer and Ben L. Shifrin for respondent.
(1) Unless plaintiff knew that the ladder was not reasonably secured to prevent its slipping he cannot be held to assume the risk thereof. There is no assumption of risk without assent, and assent implies knowledge of conditions. Assumption of risk and negligence are unlike because of the difference of the "states of mind in which they are rooted." Lee v. St. L., Etc., Ry. Co., 112 Mo.App. 372; Adolff v. Columbia P. & P. Co., 100 Mo.App. 206. Unless, therefore, Whitworth knew there was danger in obeying the foreman's order to mount that ladder, as thus set and placed by the foreman, he cannot be said to have assumed the risk, Bennett v. Lime Co., 146 Mo.App. 565. (2) It was negligence on the part of Emhoff, the foreman, to set and place a ladder upon a hardwood floor, for use by his workmen, without taking reasonably adequate measures to secure or guard it, and it was further negligence on the part of the foreman, who knew the danger and who ordered plaintiff to that place of danger, not to warn plaintiff of the risk he was about to encounter so that he, knowing the condition, might be afforded the opportunity either to refuse to obey the order or to take precautions to avoid the danger. It is a well-known rule of law that the servant does not assume the risk of danger caused by the master's negligence. Erwin v. Mo. & Kan. Tel. Co., 173 Mo.App. 508, 158 S.W. 922; Strother v. Kansas City Milling Co., 261 Mo. 1, 24; Price v. Hiram Lloyd B. & C. Co., 177 S.W. 700, 191 Mo.App. 395; George v. Railroad, 225 Mo. 364, 407. (3) When the plaintiff was ordered by defendant's foreman to hurry and mount the ladder, which the foreman himself had set and placed, he had the right to assume that the foreman would not order him to a place of danger without warning him. Such an order was an assurance by the master that the place was safe. Hence to obey such an order constituted no assumption of risk or contributory negligence. Clark v. Iron & Foundry Co., 234 Mo. 436; Herdler v. Buck's Stove & Range Co., 136 Mo. 3; Baxter v. Campbell Lumber Co., 171 S.W. 955, 186 Mo.App. 352. (4) There was no plea of contributory negligence. Defendant does not directly urge that contributory negligence has any place in this case. We call the court's attention, however, to the fact that, by the foreman's order to mount the ladder in a hurry, (a) there was an assurance to plaintiff that the place was safe (see authorities under our point 3); and (b) since "the danger not being so glaring and obvious as to deter a reasonably prudent man from following the master's directions," there could be no contributory negligence as a matter of law. Price v. Hiram Lloyd B. & C. Co., 177 S.W. 700, 702, 191 Mo.App. 395; Dean v. Railroad, 137 S.W. 603, 604, 156 Mo.App. 634. (5) The ladder, as thus set and placed by the foreman, was dangerous; and Emhoff, the foreman, having himself set and placed it, knew it was dangerous; and when he (Emhoff) ordered the plaintiff to use the ladder in its thus dangerous condition, it became his duty to warn plaintiff of that condition. Hall v. Wabash Ry. Co., 145 S.W. 1169, 1170, 165 Mo.App. 116. (6) There was no error in the instruction complained of. It required the jury to find more than was necessary to make a case for plaintiff. The instruction was sufficient without the proviso clause, which simply placed a further limitation on plaintiff's right to recover. Pendegrass v. Railroad, 162 S.W. 712, 179 Mo.App. 517. (7) As to the instruction on measure of damages. There was no error in that instruction. The clause thereof objected to is followed immediately by the words "by reason of such injuries." The jury were thereby sufficiently advised and limited as to what they should find. Dean v. Railroad, 199 Mo. 386; Rodney v. Railroad, 127 Mo. 685.
This is an action to recover for personal injuries sustained by plaintiff while in the employ of defendant as the latter's servant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $ 1,700, and the defendant prosecutes the appeal.
At the time of plaintiff's injury, to wit, February 17, 1914, he was in defendant's service as a structural iron worker, and was assisting in erecting some structural iron or steel work in a building which defendant was erecting in the city of St. Louis. Plaintiff was under the immediate supervision of defendant's foreman, one Emhoff, and upon the occasion in question he was ordered by Emhoff to ascend a ladder and perform certain services in connection with the raising and installing of a "corner angle" of steel or iron, and while in the act of ascending the ladder in compliance with said order, and when near the top thereof, it slipped from under him, precipitating him to the floor below, whereby he received serious injuries.
The petition charges that the ladder which plaintiff was ordered to ascend was negligently placed by defendant's foreman so that "it was not in a reasonably safe condition for use thereof by this plaintiff, in that said ladder was placed so that the bottom thereof rested on a hardwood floor and was not reasonably secured or guarded, so as to prevent it slipping," which fact the foreman knew, or could have known by the exercise of ordinary care, but which was unknown to plaintiff; and it is averred that while plaintiff was ascending the ladder, in the prosecution of defendant's work and pursuant to the foreman's orders, "because of the negligent placing, as aforesaid, of said ladder, and with the negligent failure of defendant and its said foreman to reasonably secure or guard the same, or to notify or warn plaintiff of the condition thereof, the said ladder slipped," whereby plaintiff was precipitated to the floor and injured. The answer is a general denial, coupled with a plea to the effect that plaintiff's injuries, if any, resulted from the ordinary risks incident to the business in which he was...
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