Peppers v. St. Louis Plate Glass Co. , 165 Mo. App. 556 ( 1912 )

CAULFIELD, J.

(after stating the facts). — I. The trial court very properly refused to give the demurrer to the evidence. The testimony certainly tended to prove that the shifting about of these immense tables amid the roaring noise and innumerable activities of a great shop was complex and dangerous, peculiarly dangerous as to an employee working under them, and that it was feasible and proper by rule, regulation, sign, signal or watchman to advise its motormen engaged in moving the tables of the whereabouts of employees working under them or to warn such employees of the approach of danger'. This was sufficient to show a case where the duty to make such rule or regulation or provide such sign, signal or watchman, rested upon the employer (Reagan v. Railroad, 93 Mo. 348, 6 S. W. 371; 1 Labatt on Master & Servant, sec. 219), and whether the defendant was guilty of negligence in that respect was a question for the jury. [Reagan v. Railroad, supra.]

Defendant appears to concede this, but asserts that by reason of plaintiff’s brief employment around the shop he must have known that no such precaution had been taken by his employer for his protection, and that, being possessed of such knowledge, his going and remaining under the table without taking precautions on his own account against being injured by a movement of the table, was contributory negligence' as matter of law. "We doubt whether the proof is conclusive that the plaintiff had the knowledge which defendant would thus impute to him, but if it be granted that he.had such knoweldge, it does not necessarily follow that he was guilty of negligence as matter of law. In order to convict the plaintiff of negligence as matter of law in not taking precautions against being injured by the moving of the table, it should conclusively appear, not only that he knew, or in the exercise of ordinary care should have known, that no one would take such precautions unless he did, but also that he knew or in the exercise of ordinary care should have known, that the table was liable to be moved during the time he would be, engaged in his work under it. In other words he must have known not only of the defect but of the present danger to be apprehended' therefrom. [Heberling v. City of Warrensburg, 204 Mo, 604, 614, 103 S. W. 36.] Now it was the custom, as plaintiff knew, not to move a table as long as it remained “unstripped” of glass, and when he went under this table it was “unstripped,” and was not being “stripped;” neither was there anything to indicate that it was about to be “stripped.” There is nothing in the record to show that plaintiff knew or by the •exercise of ordinary care should have known that the table could be stripped and made ready for moving during the twenty-five minutes he would be at work. The presumption, which the law indulges, that he was in the exercise of care for his own safety, negatives fhe idea that he had such knowledge or was negligent in hot having it. The burden was on the defendant to prove the contrary and it failed to sustain it. It was certainly entitled to nothing more than to have the question of plaintiff’s contributory negligence submitted to the jury, as was done. We regard this conclusion as being in perfect accord with the third instruction given at the instance of the defendant, which defendant’s counsel say in their brief is a correct statement of the law under the evidence.

II. The defendant’s contention that instruction No. 3, given at its instance, is in conflict with the first four instructions given at the instance of plaintiff is without merit. The first three of plaintiff’s instructions dealt with defendant’s negligence alone except that they made plaintiff’s recovery dependent upon his having been injured “without any fault on his part.” The fourth-declares nothing more than that an employee does not assume the risks which are the consequences of his employer’s negligence, a doctrine well established in this state. The defendant’s instruction No. 3 properly deals with the question of plaintiff’s alleged contributory negligence and negatives his right to recover if found guilty thereof. We have discovered no conflict between these instructions and defendant lias failed to suggest wherein such conflict exists.

III. The trial court did not err in refusing to give defendant’s refused instructions Nos. 2 and 3. The question was not of assumption of risk but of contributory negligence which defendant’s given instruction No. 3 properly presented to the jury.

IV. We need not determine whether the defendant’s instruction No. 6 was or was not erroneous. It is sufficient to say that without it the jury was fully .and properly instructed as to every phase of the cáse.

The judgment is affirmed. Nortoni, J., concurs. Reynolds, P.. J., dissents in separate opinion.