Fugler v. Bothe , 117 Mo. 475 ( 1893 )

Biggs, J.

— Charles H. Fugler, the plaintiff’s ■deceased husband, was employed by the defendants in the construction of a building in the city of St. Louis.' While in this employment the deceased fell from the second story of the building to the first floor, thereby receiving injuries which resulted in. his immediate ■death.

The petition, after alleging that the deceased was a carpenter by trade, averred that his death was caused by the negligence of the defendants, by reason of their failure to provide a safe and proper place for him to perform the work required of him. The negligence thus complained of was stated as follows: “That the defendants were then constructing a light and air shaft in said building, to reach from the second floor thereof to the top of the same, the dimensions of which were about eight by eleven feet, in which space no floor had been laid in said second floor and it was open, except a guttering that projected fifteen inches inward all around, from the walls of said shaft, upon which .guttering it was necessary for said Charles H. Fugler to stand and work; that the foreman of defendants in charge of said building, commenced the erection of a .scaffold for the purpose of making a safe and proper place for said Charles H. Fugler and others to work in the construction of said shaft but the defendants instead of permitting him to proceed in the erection of the same carelessly and negligently and recklessly, ref used to permit him to do so and peremptorily ordered that the work proceed in the construction of said shaft, without a •scaffold, and the same Charles H. Fugler then proceeded to work on said shaft and in consequence of the aforesaid wrongful act, neglect and default of the defendants the said Charles H. Fugler, while so engaged at work fell from said shaft upon the floor of said building and his death was caused thereby on said day.”

The defendants filed a motion to make this petition more specific and certain. The complaints were, that the petition failed to show whether Fugler. was an experienced or inexperienced workman; it failed to show whether or not the danger to which it was alleged the deceased was exposed was obvious or hidden; and, further, it was nowhere averred that the defendants had made Fugler' any assurances that it would be safe for him to do his work from the gutter, or that he relied upon such assurances. The court overruled th'e motion and the defendants saved their exceptions by then and there tendering a bill of exceptions.

In their answer, the defendants after making a general denial, averred that the death of Fugler was an accident or that it happened because of his imprudence, -carelessness or thoughtlessness directly contributing thereto. This was denied by the reply. Upon the issues thus made up, the case was submitted to a jury. There was a finding and judgment in the plaintiff’s favor for thirteen hundred dollars. From this judgment the defendants have appealed.

The first assignment of error presents for our consideration the action of the court touching the defendants’ motion to make the petition more specific and certain. The plaintiff’s right of recovery was in no way predicated upon the idea that the deceased was an inexperienced person. The simple averment that he was a carpenter, without more, conveys the idea that he was a workman of ordinary experience and was well acquainted with the usual hazards attending his employment. Nor is the right of recovery, as we understand it, based upon the theory that the deceased was induced to go into a place of danger, upon the assurances of his employers that there was no danger. The cause of action is for negligence on the part of the defendants in furnishing unsafe and unusual appliances or means for the performance of the work. If the defect was perfectly obvious, then the presumption of law would be that the deceased assumed the increased risk by entering upon the work, provided the danger was apparent and threatening, and that it was not reasonable to conclude that the work could be performed with safety by the exercise of extra caution. It was sufficient for the plaintiff to aver that the means of appliances furnished Eugler by the defendants were unsafe, and that such defect caused the injury. Under such an averment it was only necessary for plaintiff to introduce evidence tending to prove that the appliances furnished to Eugler were defective or unusual, thereby increasing the ordinary risk attending the work, and that such defect was the proximate cause of the injury. If the defendants relied on the claim that the defect complained of was obvious and that the danger arising therefrom was of such a character as to raise the presumption that the plaintiff by undertaking to do the work assumed the additional or increased risk, then such claim was matter of defense. We therefore conclude that the petition was sufficient, and that the court committed no error in overruled the motion.

The next assignment of error has reference to the exclusion of evidence offered by the defendants. The defendants offered to show that the gutter complained of was as safe a place to work on as swinging platforms of the same width used by painters, and also platforms used by carpenters in putting cornice on buildings. We cannot see how this evidence could have enlightened the jury, and it might have had the effect to mislead them. Such platforms are always constructed some distance from the walls of the buildings, and in this way the danger of a workman losing his balance by coming in contact with the wall does not exist. When the projection or platform is constructed against the wall of a building and it is not wide enough for the workmen to turn around without coming in contact with the wall, then the danger of falling is materially increased. This is a matter of common knowledge. This shows the inapplicability of the ■evidence. This kind of evidence could only have been admissible upon the idea that as swinging platforms of no greater width than the gutter were used without material danger to workmen, this fact was some evidence that deceased fell from the gutter through his own carelessness or inattention, or that the gutter as constructed was reasonably safe. If this was the purpose or supposed effect of the testimony we .are unable, for the reasons stated, to see its applicability, or relevancy. We will have to rule this assignment against the defendants.

The third assignment challenges the sufficiency of the evidence to authorize a recovery. There are three grounds relied on in support of this assignment. First. That the evidence failed to show that Fugler fell from the gutter, or if he did fall, that the fall was traceable to any act or omission of the defendants. Second. That the perils of working in the gutter were so obvious that Fugler was bound to take notice of them, and that by undertaking to do the work he assumed the risk as an incident to his employment. Third. That under the evidence the gutter was a safe place to perform the work required of Fugler. There is another question which we will also consider in this connection. The court, on motion of the defendants instructed the jury that if they found that such work was usually done either from a scaffold or from a gutter, then the finding should be for the defendants. It is now claimed that all the evidence tended to prove this fact, hence the verdict was against the instruction. The determination of this assignment requires an ■examination of the evidence.

There were four light and air shafts constructed in the building. These shafts extended from an opening in the floor of the second story to the roof. They were intended to afford light to the storerooms on the first floor and ventilation for the rooms in the second ■and third stories. The tops of the shafts were to be left open, and the bottoms were to be covered with .glass. In order to protect the premises from ram and snow a gutter was constructed around the base of each shaft. This gutter projected from the sides of the shaft and it was fifteen inches wide and about five or six inches deep. The sides of these shafts were to be covered with flooring. The deceased and another carpenter by the name of Schmidt, were required by the defendants to do this work. Before commencing on the first shaft the deceased and Schmidt, under the orders of the defendants’ foreman, began to erect a scaffold from the ground floor to the base of the shaft for the purpose, as Schmidt said, of doing the work assigned to them. One of the defendants forbade the ■construction of the scaffold, and he told the workmen that they could either do the work by standing on the gutter or they could quit. Thereupon the deceased and Schmidt began the work as directed, and they so continued until they finished the work assigned to them on three of the shafts. The deceased was at work on "the fourth shaft and while standing on the gutter, he fell head first to the floor below. Schmidt described the accident as follows: “He (Fugler), stood on-this projection of something like seventeen inches. As a matter of course there would be a reduction after the sheathing was on. Now, he was in this angle here and we were right close together, and I was over in that angle there. He was standing in this shape and had not room to turn in all the way. He had his back towards the studding stooping down, nailing a piece on top of another, and while he raised up, reaching for another piece of stuff, — as a matter of course while he stooped to nail the butt against the studding he balanced over head foremost and fell from the second story on the first floor. I saw him drop off. I saw him fall off.” The proof showed that Fugler was between seventeen and twenty inches across the shoulders. Schmidt was interrogated further as to the manner in which this kind of work was usually done.

The following question was propounded to- the witness by the court: “Q. I ask you how that kind of work is generally done,,that you were engaged in at the time Mr. Fugler met with the accident? A. The work we started on when we should put up a scaffold, is work that is done from a scaffold.”

■ The examination was continued by the plaintiff’s attorney. “Q. I will ask you whether a careful man might not have succeeded in doing it (the work) without being injured, without a scaffold? That is, that he might have succeeded in doing it? A. Oh, he might.”

On his cross-examination, the witness further testified: “Q. And it is a fact, isn’t it, that when there is a projection in the first floor such as you had,, that the carpenters will do the work from the projection sometimes? A. If they are compelled to; yes, sir.

“Q. Have you never seen it done before? A. No, sir.

. “Q. Then how do you know that it is done usually? A. I done it from a scaffold.

“Q. How do you know, then, if you never saw this kind of work done before? A. I never saw it done without a scaffold.”

That Eugler fell from the gutter while engaged in the work assigned to him there can be no dispute. The jury found that the gutter was an unsafe place to do the work required of the deceased, and that his fall was attributable to this. This finding is questioned by the defendants on the ground that there is no substantial evidence to support either proposition. In this we think they are mistaken. The evidence shows that Fugler was required to work on a projection extending only fifteen inches from the side of the shaft. In order to do the work he had to use both hands; to stand with his back or side to the wall, and to reach behind him for the pieces of plank he was using in boarding up the shaft. The statement of these physical facts is sufficient to show that the danger attending such work was much greater than it would have been had a scaffold been erected. If a scaffold had been built it would have stood out from the wall, thereby affording ample room to turn around without coming in contact with anything. It was not the narrowness of the gutter that rendered it dangerous, but the close proximity of the sides of the shaft.

As to the other branch of the finding, it is true that there is no positive evidence as to the direct cause of the fall; however, there is no evidence that it was caused by the inattention or recklessness of the deceased. In the absence of any such testimony, the presumption is that he was in the exercise of ordinary care. Buesching v. Gaslight Co., 73 Mo. 219; Soeder v. Railroad, 100 Mo. 673; Schlereth v. Railroad, 96 Mo. 509; Schultz v. Moon, 33 Mo. App. 329. The strong probabilities are that some portion of the deceased’s body came in contact with the side of the shaft, thereby causing him to lose his balance. The physical facts demonstrate this very clearly. He was a large man and it was not possible for him to turn around in the gutter without striking some portion of his body against the sides of the shaft. That this would likely cause him to lose his balance, is a matter of common knowledge. It is undisputed that he was a man of good habits and pérfectly healthy, therefore, it is not at all probable that his fall was brought about by physical or mental ailments,

But it is urged that if it be conceded that the projection was unsafe, and that by reason of this Fugler lost his life, yet there can be no recovery, because , the defect was obvious, and that as the deceased continued to work' with knowledge of the defect, he assumed the increased risk or hazard attending his employment. On this branch of the case the court instructed as follows: “If from the evidence the jury believe that Fugler was an experienced carpenter at and before the time when he fell from the projection described by the witnesses, that he was employed by defendants by the hour, as an experienced workman; that before beginning the work at which Fugler was employed when he fell, the said Fugler knew that it was hazardous to do such work standing on.the projection described by the witnesses, and that the danger of so doing the work was apparent and threatening; that it was not unusual for builders to do such work in that way, then, although the jury may also believe that Fugler was directed by the defendant, Batermann, to do said work from said projection, the jury must find for defendants, if they also believe that when defendant Batermann made said requirement, he also gave to Fugler the option of quitting the work entirely.’’

We think this instruction is substantially correct. The defendants object to that portion in italics. The rule is that even though defects in machinery or other appliances are patent and known to the servant, yet if the danger attending the use of such appliances is of such a character [that the machinery can safely be used by the exercise of care, caution and skill, the servant does not in such a case assume the risk of such use. Conroy v. Iron Works, 62 Mo. 35; Stoddard v. Railroad, 65 Mo. 514; Thorpe v. Railroad, 89 Mo. 650; Delvin v. Railroad, 87 Mo. 545; Bridges v. Railroad, 6 Mo. App. 389; Dale v. Railroad, 63 Mo. 455; Huhn v. Railroad, 92 Mo. 440; Stephens v. Railroad, 96 Mo. 207; Soeder v. Railroad, 100 Mo. 673; Wood’s Master and Servant, sec. 359.

The earlier decisions in this state held to- the doctrine that where the defects in machinery or appliances were obvious and known to the servant, there arose a legal presumption that the servant assumed the increased risk attending the employment. But in the case of Conroy v. Iron Works, 62 Mo. 39, the supreme court modified this rule. Judge Wagner said: “When the defect is so glaring that, with the utmost care and skill, the danger is still imminent, so that none but a reckless man would incur it, then, if the servant will engage in the hazardous undertaking, he must be considered as doing it at his peril. But if the defective machinery or appliances, though dangerous, are not of such a character that they may not be reasonably used by the exercise.of skill and diligence, the servant does not assume the risk.”

In the case of Stoddard v. Railroad, 65 Mo. 514-520, the court reaffirmed what had been said in the Conroy case. It said: “It is true that the evidence tended to show that plaintiff had knowledge of the spring frog, and the lowness of the brake beam of the tender, and, that two hands, instead of four, were undertaking -to make up the train. But the question as to whether, with this knowledge, the action of the plaintiff in making up the train was of such a reckless character as to make it such contributory negligence'on his part as to deprive him of any remedy for the injury, was a question properly referable to the jury under proper instructions,”, etc.

The court, in Huhn v. Railroad, 92 Mo. 440, adhered to the same rule, and restated it in a very clear and succinct manner, as follows: '“It has been several times held by this court that, where the instrumentality with which the servant is required to perform service is so glaringly defective that a man of common prudence would not use it, the master could not be held responsible for damages resulting from it. But, if the servant incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury; or, where it is reasonable to suppose that it may be safely used with great care or skill, a different rule applies. In such cases mere knowledge of the defect will not defeat a recovery. Negligence on the part of the servant in such cases does not necessarily arise from the knowledge of the defect, but it is a question of fact to be determined from such knowledge and the other circumstances in evidence.”

In Stephens v. Railroad, 96 Mo. 207, we find the same rule laid down. The opinion quotes, with approval, the following from Thompson on Negligence: “If, therefore, the master orders the servant into a situation of danger, and he obeys and is thereby injured, the law will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even where, like the servant, he was not entirely free to choose.” 2 Thompson on Negligence, sec. 975. In the opinion, the court,said: “There may be cases where the servant is ordered to do a particular act, and the order is so unreasonable, and the act so manifestly dangerous to life and limb, that the court, on the evidence, should declare the servant guilty of negligence in obeying the order of the master, and should direct a nonsuit. The general rule, however, is that the question is one for the jury.”

We might quote from other cases, but the foregoing will suffice. The rule to be deduced from them is, that the servant does not assume the risk of attempting to use machinery or appliances furnished by the master, though obviously defective, and their use be attended with increased risk, unless such danger or risk is apparent, threatening or imminent.

It 'may be true that the cases cited, as to their facts, are dissimilar to the present case, but, if the principle of law stated is applicable, it becomes our duty to apply it without question. The rule has become too firmly rooted in the jurisprudence of the state to be questioned by us. That the gutter upon which Eugler was required to do the work, was an appliance within the meaning of the foregoing decisions, we do not think, can be fairly called in question. By order of the defendants it was made to take the place of a scaffold ; that the latter would have been regarded as an appliance, no one could question.

But, even though the gutter be treated as an appli•ance, the doctrine announced by the foregoing cases is not applicable, if all the evidence in the case was to the effect that the work which Fugler was required to perform was usually done either from a scaffold or the gutter. If such was the condition of the proof, we would be compelled to hold that the danger assumed by the plaintiff’s husband was the usual risk attending his employment, because a usual method had been'adopted for its performance; and, that, in the absence of any testimony that the guttering was faulty in its construction, the plaintiff could not recover; but, as we have seen, the plaintiff’s evidence tended to show that such work was usually done from a scaffold only, and the jury, under proper instructions, found this to be a fact. The jury also found that the performance of the work, from the guttering was unusual and extra-hazardous, and they also found that, the danger attending the use of the gutter was the proximate cause of Fugler’sdeath, and that such danger was not threatening,, immediate or imminent, it only remains for us to say whether the performance of the work in the manner-required by defendants, was so manifestly dangerous to life and limb, that the trial court ought to have directed a nonsuit instead of submitting the issue to the jury. This we cannot do. Schmidt testified that, by the exercise of good care the work might be done by standing on the gutter, and the fact that he and Eugler completed three of the shafts without injury to either, has-some tendency to prove that the danger was not imminent or threatening.

The plaintiff’s instruction made the defendants-liable, if the projection “was an unsafe place.” The defendant’s fifth instruction rendered them liable if the jury found that projection “toas not a reasonably safe” place. The contention is that the use of the words “an unsafe place” was prejudicial error: that the words “not a reasonably safe place” were correct; that the instructions thus given were, inconsistent, and they were likely to confuse or mislead the jury. The-use of the word unsafe in the plaintiff’s instruction implied that it was the duty of the defendants to-furnish a safe place for Eugler to do his work, and not a place that was absolutely safe as contended by the defendants. This instruction however, is subject to criticism, and if it stood by itself we are inclined to the opinion that it would amount to reversible error, although the supreme court in Bowen v. Railroad, 95 Mo. 268-276, approved an instruction which made use of the words “unsafe and insecure.” However, this particular objection was not made to that instruction. It seems to us, if there were no other instructions qualifying the words used, or explaining the obligation of the defendants in this respect, the jury might have concluded that it was the duty of defendants to furnish a place for Eugler to work that was absolutely safe. Whatever doubt there might have been in the minds of the jurors as to the true meaning of the plaintiff’s instruction, was removed or explained by the defendant’s fifth instruction. This answered the requirements of the law. Owens v. Railroad, 95 Mo. 169; Dougherty v. Railroad, 97 Mo. 647; Forster Mfg. Co. v. Guggemos, 98 Mo. 391.

The last assignment of error involves the correctness of the court’s instruction as to the measure of damages, which reads: “The jury are further instructed that, if they find a verdict for the plaintiff herein, they will assess her damages at such sum as they may believe from the evidence she sustained from the death of her husband, not exceeding the sum of $5,000, and in estimating the same they will take into consideration what they may believe from the evidence would have been the value of her support from him from the time of his death, during the time he would probably have lived and supported her.”

The defendants complain that this instruction is erroneous because it was not qualified as required by section 4427, Revised Statutes, 1889. This section concludes as follows: “And in every such action the jury, may give such damages, not exceeding $5,000, as they may deem fair and just with reference to the necessary injury resulting from such death, to the surviving parties who may he entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.” The evident intention of the legislature was to confine compensatory damages to the necessary injury to the survivor resulting from the death. The supreme court in the case of Parsons v. Railroad, 94 Mo. 286, in construing this statute, decided that whenever the circumstances of a case afforded a safe standard by which compensatory damages could be approximately ascertained, such standard should be given to the jury. The instruction complained of is in harmony with what the court said in the Parsons case, and it is so worded as to afford the defendants no ground of complaint. It confines the damages to the necessary injury. As was also decided in the Parsons case, this section of the statute also conferred upon the party suing, the right to exemplary damages in any case wherein the circumstances would have authorized such damages at the suit of the deceased, had he survived the injuries. In the case at bar, there was nothing to show that the acts of the defendants were wanton, or willful, therefore the court had no right to instruct on any such theory. Even if it was a proper case for exemplary damages, we are at loss to know how the defendants were prejudiced by such failure. We will have to rule this assignment likewise against the defendants.

Finding no error in the record the judgment of the circuit court will be affirmed. Judge Thompson concurs in this opinion. Judge Rombaubb, who dissents, is of opinion that this decision is contrary to the decisions of the supreme court in case of Aldridge v. Furnace Co., 78 Mo. 558; Devitt v. Railroad, 50 Mo. 302 and other cases. It is therefore ordered that the cause be certified to the supreme court for final determination, and that until so determined all further proceedings therein be stayed.