Baxter v. Campbell Lumber Co. , 186 Mo. App. 352 ( 1914 )

OPINION.

STURGrIS, J.

— It is proper for us to remark that it materially aids the appellate courts for the parties in their briefs to cite the Missouri cases in the official reports as well as by reference to the Southwestern Reporter when the cases cited are officially reported. This method of citation to the reporter system alone is not subject to objection in citing cases from other States. This is- a growing tendency of attorneys and we make this observation generally rather than as applied to this particular case.

Appellant’s first point is that the evidence shows that the injury was caused by the negligence of plaintiff’s fellow servants in giving the rope a quick jerk and thereby suddenly and violently throwing the pipe against plaintiff, citing Madden v. Mo. Pac. R. Co., 167 Mo. App. 143, 147, 151 S. W. 489; Henson v. Pascola Stave Co., 151 Mo. App. 234, 243, 131 S. W. 931. That defendant in this kind of a case is not liable for an injury due solely to the negligence of a fellow servant is conceded, Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, 318, 91 S. W. 460, and we think defendant would have been entitled to an instruction submitting this question to the jury. There is much evidence, however, tending to show that the pulling of the rope was not unduly violent or sudden and we cannot hold as a matter of law that this was the sole proximate cause of the injury; in fact, the defendant’s evidence tends to show that there was so little violence in the forward movement of the pipe that plaintiff merely “set down” instead of being knocked down or falling over the old pipe.

Defendant contends that it would be requiring more than ordinary care to have required it to make plaintiff’s place of work more safe by removing the old pipe and debris or to adjust or fasten the block and tackle in a safer way, and that to dó so violates the rule that the master has a right to do his work in his own way, provided it be done with reasonable care and safety. [Dickinson v. Jenkins, 144 Mo. App. 132, 136, 128 S. W. 280; Sutherland v. Caretson-Creason Lumber Co., 149 Mo. App. 338, 343, 130 S. W. 40.] We think, howevér, that .under the evidence here the question is one for the jury as to whether, considering the manner of doing this work, the’place where plaintiff was required to go to perform the same was reasonably safe and whether the master had exercised ordinary care in that regard.

Nor do we think this is a case falling within the exceptions to the rule of furnishing a safe place to work applicable to repair work in making safer an unsafe place, Rowden v. Schoenherr-Walton Min. Co., 136 Mo. App. 376, 384, 117 S. W. 695, or to dangers temporary and inherent in the nature and progress of the work. [Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, 318, 91 S. W. 460.] The work of installing this blowpipe had nothing to do with making safe the place where plaintiff was ordered to go in and do this work. That the given work or the place of doing it is temporary is a circumstance to be considered in determining what is reasonable care on the master’s part in providing a reasonably safe place to work, but does not usually excuse him as a matter of law. The shortness of the time and ease with which the place of appliances can be made safer is also a fact to be considered and in this case makes a question for the jury.

As bearing on this point and that of assumption of risk and contributory negligence raised by appellant, it must be borne in mind that the plaintiff was working under the eye and in obedience to the direct and peremptory command of the master requiring quick obedience. In such cases, the servant has a right to rely on the superior knowledge of the master and to obey without careful inspection. He may assume that the master will not send him into a place of danger. [Parsons v. Hammond Packing Co., 96 Mo. App. 372, 381, 70 S. W. 519; Bradford v. Railroad, 136 Mo. App. 705, 711, 119 S. W. 32; Stephens v. Railway Co., 96 Mo. 207, 212, 9 S. W. 589; Herdler v. Stove & Range Co., 136 Mo. 3, 17, 37 S. W. 115; Clark v. Iron & Foundry Co., 234 Mo. 436, 450, 137 S. W. 577.] We hold that this case was one for the jury.

What is designated as instruction number one, for plaintiff, is more in the nature of a preamble to the more specific instructions following it. It told the jury that it was defendant’s duty to furnish plaintiff a reasonably safe place in which to work. Such general declarations of the master’s duty are frequently given and then followed, as was the case here, by specific instructions applying this general principle to the particular facts of the case. [Overby v. Mears Min. Co., 144 Mo. App. 363, 374, 128 S. W. 813.] It is true, as asserted by appellant and conceded by the respondent, that the master’s duty goes no further in this respect than to use ordinary care to furnish a reasonably safe place in which to work. [Bennett v. Crystal Carbonate Lime Co., 146 Mo. App. 565, 577, 124 S. W. 608; Bradley v. Railway Company, 138 Mo. 293, 307, 39 S. W. 763; McElhiney v. Friedman-Shelby Shoe Co., 158 Mo. App. 318, 328, 138 S. W. 60.] But, it is stated or intimated in each of these cases that such error in the abstract statement of the law is subject to criticism but is not generally reversible error if the other instructions correctly state the law as applied to the particular facts, and that the instructions must all be read together. Here, the next instruction, applying this principle to the facts of this case, tells the' jury that they must find that plaintiff’s injuries were caused by defendant’s carelessness and negligence (the contrary of due care) in failing to furnish a reasonably safe place. An instruction given for appellant told the jury that defendant was not an insurer of plaintiff’s safety and did not guarantee against his injury while working for it, but that a recovery must be based on defendant’s negligence. We rule that the error does not call for a reversal.

Both parties to this case have given undue prominece to the question of assumed risk. There is little in this case indicating that this was a mere accident which could not have been foreseen or guarded against by ordinary care, or that it was due to any hidden defect or danger. It is a question of negligence on one hand and contributory negligence on the other. It is now so well settled as to need no citation of authorities that the servant does not assume risks arising from the master’s negligence. [Brady v. Railroad, 206 Mo. 509, 528, 102 S. W. 978, 105 S. W. 1195.] The question of assumed risks of known danger and contributory negligence by going into the same are closely allied and often treated of by the courts as being the same. In the present case the court instructed the jury (numbered 4) that the employee does not assume the risks incident to the employment, unless such risks and dangers are so apparent that an ordinarily prudent man would not undertake the same; and, (numbered 5 and 6) that the verdict should be for plaintiff on the defense of assumption of risk in using a dangerous place to work at the master’s directions, unless the danger was so obvious and glaring as to deter a man of ordinary prudence from so doing. This is more correctly the law as applied to contributory negligence based on this ground. [Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, 322, 91 S. W. 460.] The courts, however, sometimes speak of this as assumption of risk. Thus, in Parsons v. Hammond Packing Co., 96 Mo. App. 372, 381, 70 S. W. 519, the court used this language: “The mere fact that the servant knows the defects may not charge him with contributory negligence or assumption of the risk growing out of them. . . . But if the defective appliance, although dangerous, is not of such a character that it may not be reasonably used by the exercise of skill and diligence, the servant does not assume the risk.” [See, also, Bradford v. Railroad, 136 Mo. App. 705, 710, 119 S. W. 32.] The principles of law declared by these instructions, criticised by appellant, are correct and the error is in designating the defense as assumption of risk instead of contributory negligence. Jurors are not likely, however, to be misled in this way, as they look to the general meaning of an instruction rather than to its analysis or the legal terms used. [Baker v. City of Independence, 93 Mo. App. 165, 170.] Besides, there was a correct instruction given for appellant on assumption of risk, telling the jury that plaintiff assumed the risks ordinarily incident to the work in question, and if he was injured by the dangers incident to the work to find for defendant. The plaintiff did not adopt the safest way in the trial of this case, when a safer one was open to him, in that he asked too many instructions on the question of assumed risk. Any negligence in that respect, however, will not be held as reversible error.

The defendant complains that the court admitted evidence that the defendant held liability insurance and that an insurance company would be ultimately liable for the verdict rendered. We find, however, that this evidence came in in an incidental manner and was promptly stricken out on objection being made. The court also permitted the plaintiff to show the amount of wages (one hundred dollars per month) the defendant’s foreman was receiving, restricting this evidence to showing his interest in the case. The court, perhaps, went too far in this respect, as the fact of his being in defendant’s employ was sufficient, but we think the error was harmless.

The defendant claims that the verdict, which was for $2500, is excessive in view of plaintiff’s age, earning capacity, and that any permanent injury to his knee is partially due to his previous rheumatism therein. But that was for the jury. A reading of the evidence has convinced us that the amount awarded is not so grossly excessive as to authorize the exercise of our limited right to require a remittitur. There is evideuce warranting the jury in finding that plaintiff’s leg is permanently injured and its strength and usefulness greatly impaired. Other suggested errors have been noticed hut do not warrant further discussion. *

The judgment will he affirmed.

Robertson, P. J., and Farrington, J., concur.