Nash v. Dowling

BEOAHDUS, J. Tlie plaintiff’s suit is against the defendants as partners, to recover damages for personal injuries received, resulting in the loss of one of his eyes. The injury was caused from spalls of rock flying from under the stroke of a sledgehammer wielded by a fellow-workman while working in the rock quarry of the appellant. There w’as a verdict and judgment for plaintiff for $-1,000, from which defendants appealed to the Supreme Court. Before the case was heard by that court, the jurisdiction of this court was increased by constitutional amendment which gave us jurisdiction of the amount in controversy, hence the case has been transferred to this court. The defendants contend that the plaintiff was not entitled to recover on the evidence for various reasons. First, as it was shown that the plaintiff was aware of the defective condition of the sledge handles, his continued use of them after such knowledge was an assumption by him of the risk incident thereto, without a promise upon the part of the defendants that the defect would be remedied, of which there was no proof. We believe this to be a misconception of the testimony on that point. The plaintiff testified that a few days before the accident, when the defendant Cavanaugh was at the quarry where the w'ork was conducted, the foreman in charge called out “and asked him what was the reason he didn’t bring the sledges” (alluding to sledges with handles that were not defective) and in response Cavanaugh said: “I will bring them right away.” He had previously called the foreman’s attention to the defects in the handles in question, who assured him that he had ordered them and did not know why they had not been furnished. It does not appear that any promise in direct words was made to the plaintiff to remedy the defect, but that wras not necessary, if it sufficiently appears that the foreman and Cavanaugh in substance did convey the idea that other handles for the sledges would be furnished, and plaintiff, relying on [162] what they said, continued his service. See Conroy v. Vulcan Iron Works, 62 Mo. 35. In Holloran v. Iron Foundry Co., 133 Mo. 470, it is announced as a well-established rule in this State, “that notwithstanding the defect or risk [referring to appliances and the character of the employment] is brought to the knowledge of the employee, yet if he reports it to his employer and the master promises to repair the defect or- remove the danger, the servant can recover for an injury caused thereby,” etc. And, second, it is contended as a general proposition that the plaintiff was not entitled to recover for the reason that the injury was the result of the danger attending the work, the risk of which, plaintiff, by his employment, assumed; and' it is a general rule that, “if the workman is employed in a dangerous job, or to work in a service of peril, and if the danger belongs to the work itself, or the service in which he is engaged, he will be held to all the risks which belong to either.” Fugler v. Bothe, 117 Mo. 475; Conroy v. Vulcan Iron Works, supra; Hester v. Jacob Dold Packing Co., not yet reported. But while this is true, it is also established as a general rule in this State, that notwithstanding the servant assumes the risk incident to his employment, yet if the master relaxes his vigilance to use reasonable care and caution to protect the servant while engaged in his work, and by reason thereof the servant is injured, the master is liable. The reason for the rule is that the servant is not injured by the danger ordinarily incident to the employment, but by reason of the enhanced or aggravated danger brought about by the negligence of the master. Bradley v. Railroad, 138 Mo. 293. In this case, notwithstanding the plaintiff, by reason of his employment, assumed the risk incident- from flying spalls thrown out while the rocks were being struck by the sledges, yet if the danger from such flying spalls was aggravated by reason of the negligence of the defendants in failing to furnish to their laborers reasonably safe sledges for use, and the plaintiff was injured as a con [163] sequence, his injury was not the result of danger incident to his employment, but was the result of defendants’ negligence. And there is another rule of law applicable to the facts of this case, also well established in this State, viz.: That it is the duty of the master to exercise ordinary care and caution in furnishing his servant with reasonably safe instruments with which to do his work, and notwithstanding the servant knows that the instruments he is using are defective, yet if such defect is not so glaring as to prevent a prudent person from continuing to use them, when it is reasonable to suppose that they can be safely used by the exercise of care and caution, the master is not excused from liability thereby. Stoddard v. Railroad, 65 Mo. 514; Devlin v. Railroad, 87 Mo. 545; Hamilton v. Mining Co., 108 Mo. 364. “And negligence on the part of the servant does not necessarily arise from a knowledge of the defects of the appliances he may be using, but it is a question of fact to be determined from such knowledge and other circumstances in evidence.” Hester v. Jacob Dold Packing Co., supra; Huhn v. Railroad, 92 Mo. 440; Devlin v. Railroad, supra; Thorpe v. Railroad, 89 Mo. 650; Dale v. Railroad, 63 Mo. 455; Soeder v. Railroad, 100 Mo. 673. It follows, therefore, that defendants’ demurrer to plaintiff’s case was properly refused by the court, as it was a question for the jury to say whether the defects in the sledge handles, of which plaintiff had knowledge, were of such a character as would deter a person of ordinary prudence from using them because it would not be safe to do so, with the exercise of reasonable care. But it is claimed that the defects in the handles of the sledges were not shown to have caused plaintiff’s injury. The purport of plaintiff’s testimony was that while his co-laborer Kerens was in the act of striking the blow which is alleged to have caused the accident, his hand came in contact with the splintered part of the handle which had the effect of causing him to make an unsteady or glancing stroke which threw out a great many spalls, one of which struck plaintiff in the eye, [164] and that a square blow does not throw out sufficient spalls to be dangerous. It was generally conceded by the witnesses on both sides that an uneven or glancing blow upon a stone with one of these sledges would be more likely to send out spalls than an even or square blow. We think upon the whole case there was evidence tending to show that the splintered handles caused plaintiff’s injury. An examination of the record will show that there was evidence tending to prove every material allegation of plaintiff’s cause of action. The plaintiff, while testifying, was permitted, over the objection of the defendants, to answer the following question: “Q. Well, did that split condition of the maul render its use in any way dangerous ? A. No, sir; it could not be safe, because a man would be liable to catch his hand at any time.” The admission of this evidence was a hurtful error, because it was permitting the witness to invade the province of the jury, whose duty it was to determine whether the handle in question was or was not dangerous. Madden v. Railroad, 50 Mo. App. 666; Gutridge v. Railroad, 94 Mo. 468; King v. Railroad, 98 Mo. 235; Koons v. Railroad, 65 Mo. 592. At best the plaintiff’s case was not strongly made out, in view of which the objectionable evidence might have had a material influence in gaining the verdict for him. Eor this error the cause is reversed and remanded. All concur.