Browning v. Kasten , 107 Mo. App. 59 ( 1904 )

GOODE, J.

Plaintiff was-hurt by part of a wall of a brickkiln falling on him and sued the defendant, who is the owner of the kiln, for the consequent damages. There were two kilns on the yard, denominated the east and west kilns. Plaintiff was injured by the fall of tbe east wall of the west kiln. He had been employed about the brickyard five or six weeks, and his usual duty was running an engine; but when the engine was idle, other tasks were assigned to Mm. On the day of the accident he had been at work daubing the outside of the Mins with mud and shortly prior to it was working on the east kiln. During the afternoon Martin Schloss, who was foreman of the yard, asked the plaintiff to take his (Schloss’s) place at the west kiln while he transacted some business with a man who had called to see him. In compliance with that request or ,order, plaintiff began to set brick along the east wall of the west Hln. He had been doing this work for a few moments when Schloss returned, said the bricks were not set right and that he would show plaintiff how to set them. "While Schloss was showing him, the wall fell and broke his leg. The side of the kiln was thirty-two feet long and twelve feet high. The part that fell was a segment twenty-four feet across and eight feet high; that is to say, the middle of the wall fell to within four feet of the ground and leaving about four feet standing at either end. The wall had been leaning outwardly for some time and Schloss had been warned that it was dangerous. Cracks had appeared in it the morning of the day of the accident and Schloss’s attention was called to them. He said the wall would stand until he got new bricks laid against it and then they would hold it. There is testimony that Kasten’s attention had been attracted by tbe bad condition of the wall, and that after the accident he said he had intended to prop it but forgot to do so.

Plaintiff got judgment and defendant appealed.

The contention is advanced that plaintiff assumed the risk of the wall falling when he went to work on the west kiln, because its tottering and dangerous condition was apparent to the eye; that he had been previously working a short distance away and the wall was visible to him. But the plaintiff’s testimony was that his view of the wall before he began work on it was obstructed by intervening objects and he did not notice it was in a dangerous state when he took Schloss’s place. As setting brick in the kilns was not his usual duty and he had been about the west kiln for only a few moments before it fell, it is idle to say it so plainly appears he realized and voluntarily encountered the danger of working there as to call for a nonsuit, when the foreman and other men whose business it was to work there all the time, continued to do so, under the belief that the wall would stand until strengthened by the fresh brick which were being set. The instruction granted for the defendant on this defense of assumed risk was too favorable to him. It was that if the jury found the wall was open to plaintiff’s inspection, and by ordinary care he could havé discovered it was unsafe, he could not recover, though the defendant knew its state.

One condition necessary to defeat a servant’s action for a personal injury on the ground that he assumed more risk in the performance of a task than is commonly incident to it, is that he realized the existence of the hazard he incurred; and that he did realize it must appear either from the fact that it was too obvious to remain unknown, or from positive evidence that, he knew it. Dean v. St. Louis Woodenware Co., 106 Mo. App. 167. It is a master’s duty to use ordinary care to furnish his servant a safe place to work, and the servant is not charged with the responsibility of inspecting the place furnished to detect lurking dangers. Porter v. Railroad, 60 Mo. 160; Herdler v. Stove Co., 136 Mo. 3; Clowers v. Railroad, 21 Mo. App. 213. It is incumbent on the servant, after he has been provided with a reasonably safe place to work, to nse ordinary care, to avoid an injury. We do not understand that he can be held to have assumed a risk because he failed to discover it. Neither can his action for damages be defeated on the score of his own negligence in working in a dangerous place, if the master set him to work there, unless the danger was so palpable that one of ordinary prudence would have been deterred; in which instance the defense of contributory negligence is available. Curtis v. McNair, 173 Mo. 270.

An instruction favorable to the defendant advised the jury that plaintiff could not recover unless defendant knew the wall to be unsafe and with such knowledge told or permitted the plaintiff to work near it without warning him of the danger, and unless the plaintiff did not know, or by ordinary cafe could not have discovered the danger. The defendant certainly had nothing to complain of in respect to the instructions.

Schloss swore he was foreman only when the defendant was absent, and it is contended that as Kasten was on the premises that day, Schloss was no foreman and, therefore, if he directed Browning to work in a dangerous place, the resultant injury was due to the negligence of a fellow-servant, for which an action will not lie. Kasten was one hundred yards or more away and behind the east kiln when Schloss ordered Browning to work on the west kiln, and it is quite refined to say that one who was foreman in the proprietor’s absence, was so completely deprived of authority by the presence of the proprietor somewhere on the premises that an employee was under no obligation to obey the foreman’s order. However, the proximate cause of the injury in this case was not Schloss’s direction to Browning to work on the west kiln, but the insecure condition of the wall. It is undeniable that Schloss had knowledge of its state and there was testimony that Kasten bad too. He certainly bad ample opportunity to know and should be beld responsible.

Tbe plaintiff was plainly burt as tbe result of a breach of duty by bis employer while be (plaintiff) was in tbe line of bis duty and free from negligence.

Tbe judgment is affirmed.

Bland, P. J., and Bey-burn, J., concur.