Worheide v. Missouri Car & Foundry Co.

• Decision Date: 13 November 1888
• Citation: 32 Mo.App. 367
• Parties: JOHN WORHEIDE, Respondent, v. MISSOURI CAR & FOUNDRY COMPANY, Appellant.
• Court: Missouri Court of Appeals

32 Mo.App. 367

JOHN WORHEIDE, Respondent, v. MISSOURI CAR & FOUNDRY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

November 13, 1888

Appeal from the St. Louis City Circuit Court. --HON. DANIEL DILLON Judge.

REVERSED.

Dyer, Lee & Ellis, for the appellant.

The court should have taken the case from the jury and given either an instruction for nonsuit at the end of the plaintiff's case, or an instruction to find for defendant at the close of the evidence, because the trusses were of simple construction and necessarily safe if used with ordinary care; and also, because however built, they were open to the observation, and within the daily view of the plaintiff, and, therefore, were not within the scope and meaning of the rule, applicable to complicated machinery which requires the employer to furnish the employe with safe machinery or appliances. Marsh v. Chickering, 101 N.Y. 396; Berlin v. Envelope Co., 5 N.E 58; Powers v. Railroad, 98 N.Y. 280; Burke v. Withervee, 98 N.Y. 562; Shear. Redf. on Neg. sec. 92; Smith v. Railroad, 69 Mo. 32; Cagney v. Railroad, 69 Mo. 416; Naylor v. Railroad, 11 N.W. 24; Lopez v. Mining Co., 2 P. 748; Stafford v. Railroad, 2 N.E. 185; Porter v. Railroad, 71 Mo. 66; Covey v. Railroad, 27 Mo.App. 170.

C. P. & J. D. Johnson, for the respondent.

If a master, through a failure to exercise ordinary care, furnishes a defective machine to be used in the prosecution of his work, and his servant, ignorant of such fact, and otherwise without fault, is injured thereby, the master is liable to the servant for damages. Gibson v. Railroad, 46 Mo. 163; Dale v. Railroad, 63 Mo. 455; Waldhier v. Railroad, 87 Mo. 48.

OPINION

ROMBAUER P. J.

This is an action by the servant against his master to recover damages for personal injuries caused to the former by the latter's failure to provide appliances which were reasonably safe for their intended use. The defendant is the owner of extensive car-shops in this city, and the plaintiff, a mechanic of many years experience, who was at the date of the accident, in charge of running a rip-saw in close proximity of the appliances alleged to be defective. The accident was caused by the tipping over endways of two trestles, on which heavy timbers were piled, in consequence whereof the timbers slid and struck plaintiff's leg, inflicting permanent injuries. There was a verdict for plaintiff.

The negligence on the master's part, which is claimed to have given rise to the action, is thus stated in the petition: " That said trusses were each about eight feet long and twelve inches high, made of single timbers to each of which were attached four legs; that the end of the timbers of each truss projected over the legs thereof fifteen inches more or less, and the said legs were attached thereto in such manner as to admit of said trusses being upset endways by the piling of lumber or timber thereon outside of said legs; that said trusses thus constructed were used by placing them parallel to each other, and the necessary distance apart, and by placing or piling thereon timbers or lumber, such as is used by defendant in its said factory; " and again, " that the said trusses upset by reason of their said defective and dangerous construction and condition, and of the said negligence of the defendant, by and through its agent and vice-principal, in directing and permitting the same to be used in the manner and for the purposes aforesaid." There was no charge of any other negligence on the part of the defendant or agent or vice-principal, except such as could be inferred from the construction of the trusses hereinabove stated, and that " it permitted the trusses thus constructed to be used in the manner and for purposes aforesaid."

The defendant's answer was a general denial and the plea of contributory negligence.

At the close of the plaintiff's case, as well as at the close of the entire testimony, the defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused, and the main error complained of is this action of the court.

While the plaintiff's petition states these defective appliances to have been trusses, the uncontradicted evidence as well as the exhibition of one of the identical appliances, both on the trial of the case below and upon the hearing in this court, shows them to have been ordinary trestles of the simplest construction, known in vulgar parlance as " horses,"...