Ludwig v. H. D. Williams Cooperage Co. , 156 Mo. App. 117 ( 1911 )

CAULFIELD, J.

(after stating the facts).— I. Defendant first assigns as error the action of the court in refusing to sustain its demurrer to the evidence. We are convinced that the court’s action was proper.

It is the master’s duty to. use reasonable care to furnish and keep appliances reasonably safe for the purpose for which they are intended. This proposition needs no authorities to sustain it. And we have no doubt that the jury was justified in finding from the evidence in this .case that the insecurely fastened guard rail furnished by the defendant to the plaintiff was not reasonably safe for the purpose for which it was intended and that in furnishing it defendant failed to use reasonable care. Nor is it material in this case that re jointers were not generally or ordinarily equipped with guard rails. Having adopted a guard rail the law cast upon defendant the duty of using reasonable care to furnish and keep it reasonably safe for the purpose for which it was adopted. [Bender v. St. L. & S. F. Ry. Co., 137 Mo. 240, 250, 37 S. W. 132.] Nor do we agree with counsel for defendant that “as the plaintiff knew the condition of the machine upon which he was working for two months before the accident, he assumed the risk.” The servant does not assume the risks of the master’s negligence, unless it be where the injury occurs from the particular mode or manner in which the servant uses the defective appliance when another safe way to use it appears. [Tucker v. Mine LaMotte Lead and Smelter Co., 155 Mo. App. 553, 134 S. W. 1101.] The effect upon the master’s liability of the servant’s remaining in the service and continuing to use the appliance after knowledge of its defective condition, due to the master’s negligence, depends upon whether the servant’s conduct in that respect amounted to contributory negligence, which in turn depends upon whether such conduct was an exercising of ordinary care. “The true rule in this state, as seems to be supported by the great weight of authority, is as below stated, viz.: Where the instrumentalities with which or the place where the servant is required to perform services are so glaringly defective and dangerous that a man of ordinary prudence would not use or occupy them, the master cannot be held responsible for injuries resulting from their use or occupancy, even though those defective conditions were caused by the negligence of the master. In such cases the servant’s contributory negligence and not his assumption of risk would prevent his recovery. But if the servant incurs the risks of place or machinery which though dangerous are not so much so as to threaten immediate injury, or where it is reasonable to suppose that they may be safely used or occupied with great skill and care, the mere knowledge of the defects on the servant’s part will not defeat a recovery. [George v. Railroad, 225 Mo. 364, 411, 412, 125 S. 196; Huhn v. The Mo. Pac. Ry. Co., 92 M. 440, 447, 4 S. W. 937.] Now in the case at bar there is no doubt that plaintiff knew of the defective fastening and resultant wabbling of the guard rail and that his hand would be cut if it went down to the knives in the space between the boards and the guard rail. But the question still remains whether the rejointer was so glaringly defective and dangerous on account of the insecure fastening, and the wabbling of the guard rail, that a man of ordinary prudence would not use it, or whether it was reasonable to suppose that the machine might be safely used with great skill and care. “Negligence on the part of the servant in such cases does not necessarily arise from his knowledge of the defect, but is a question of fact to be determined by the jury from such knowledge and all other facts and circumstances shown by the evidence.” [George v. Railroad, 225 Mo. 364, 412, 125 S. W. 196.] Upon the record before use we do not feel constrained or justified to declare as a matter of law that the plaintiff was guilty of contributory negligence. The evidence presented nothing more than a case for the jury’s determination.

II. The defendant’s instruction numbered 4 was properly refused and this regardless of whether it correctly stated an abstract legal proposition. There was no evidence that the rejointer with the guard rail loosely fastened and wabbling was such as was ordinarily and generally used in the business in which the defendant was engaged. The evidence in that regard, as we understand it, referred solely to machines without guard rails. And as already indicated by us, the defendant’s duty in respect of furnishing a rejointer without guard rails is not material to the issues in this case. By adopting a guard rail it assumed a duty which might not otherwise have been cast upon it. If, then, this instruction related to the use generally and ordinarily of rejointers with loosely fastened and wabbling guard rails it was without any evidence upon which to predicate it; and if it related to such use of machines without guard rails it was without the issues in the case.- In either event it was properly refused.

III. Defendant next contends that plaintiff’s instruction numbered 1 was erroneous in that it told the jury that if they found from the evidence that the injury complained of was the direct result of “such defective condition” of such guardrail, “then,” etc. The defendant asserts that by reason of the use of such language the instruction assumed that the guard rail was defective. There is no merit in this contention. In the preceding portion of the instruction it was made a condition to plaintiff’s recovery that the jury believe from the evidence that the guard rail of the machine in question was “out of order” and it is plain that it was this condition of being “out of order” that is referred to by the words “such defective condition.” The instruction did not assume the existence of the defective condition but submitted it as a question of fact to the jury.

IY. Defendant next complains that instructions numbered 1 and 3 were erroneous because they permitted the jury to take into consideration the plaintiff’s age in determining whether he was using ordinary care or was guilty of contributory negligence. There was no error in this. [Campbell v. St. Louis & Sub. Ry. Co., 175 Mo. 161, 174, 75 S. W. 86.] And if it be true, as defendant asserts, that in this respect they conflict with instructions numbered 7 and 10 given on behalf of defendant, then the latter are erroneous and it cannot avail defendant to complain of the conflict. [Hall v. Railroad, 219 Mo. 553, 591, 118 S. W. 56.]

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.