Dale ex rel. Baker v. Hill O'meara Construction Co.

BLAND, P. J. (after stating the facts). — 1. Plaintiff and the carpenter, who let the piece of timber fall on him, were not working for the same master nor were they under the same supervision. For these reasons they were not fellow-servants. Dixon v. Railway, 109 Mo. 1. c. 423. 19 S. W. 412. The evidence is all one way that the work at which the carpenters were engaged was dangerous to themselves and to any one who might be on the ground immediately under them. The evidence also shows that plaintiff knew, when he went to work in the morning, that the laying of the rafters was progressing in his direction and sooner or later the carpenter would be immediately over him sawing off the ends of the rafters, and when this should occur the place would be dangerous. He testified that he did not think they would reach him béfore noon and that- he did not look up after he commenced to shovel dirt to see where the carpenters were at work. They were in plain sight of him and he could have discovered their whereabouts by merely casting his eyes upward. He failed to do this and we think his own evidence convicts him of negligence. There is evidence that the carpenter, who let the piece of timber fall on plaintiff, was also guilty of negligence. He testified, that he called out to persons below, “Look out.” There is other evidence that he made no such call at or about the time the piece of timber fell upon the plaintiff. His own evidence shows that the end of the rafter was split and when he sawed through the split the upper part got away from him and fell. If he had looked, he would have seen plaintiff immediately under him and discovered his extreme peril. He should have done this before sawing through the split and taking the risk of the piece of timber getting away from him and falling on plaintiff. The situation required of him the exercise of diligence commensurate with the peril and we think the evidence shows that he did not exercise [97] that degree of care he should have exercised under the circumstances. Therefore, both the plaintiff and the carpenter may be convicted of negligence. The learned trial judge seems to have come to this conclusion, but declared as matter of law that plaintiff was entitled to recover, notwithstanding his own negligence, if the evidence showed that the carpenter knew or by the exercise of ordinary care could have known of' plaintiff’s peril and negligently let the piece of timber fall on him. We think this view of the law is correct under the facts in the case. The negligence of plaintiff was prior in time to that of the carpenter and it was omissive, not active. Plaintiff did nothing that directly contributed to his injury and would not have been injured but for the negligence of the carpenter. Where the negligence of both parties is thus related and it appears that plaintiff would not have been injured had defendant’s servants used due care, plaintiff may recover. Klockenbrink v. Railroad, 81 Mo. App. 351; Hanselman v. Railway, 88 Mo. App. 123; Hutchinson v. Railway, 88 Mo. App. 376; Edwards v. Railway, 94 Mo. App. 36, 67 S. W. 950; Morgan v. Railway, 159 Mo. 262, 60 S. W. 1035. 2. The declaration of law asked by defendant sought to apply the doctrine of assumed risk to the facts of the case. Some confusion in respect to assumed risk and contributory negligence has- arisen in this State on account of loose and unguarded expressions found in some of the opinions of the appellate courts. They are easily distinguished. Assumption of risk rests upon contract. Negligence rests on tort. Assumption of risk is the voluntary act of an ordinarily prudent man who, for- hire, takes the chance of a known or obvious danger incident to his employment. Contributory negligence is the casual action of a servant without ordinary care or the omission to do something for his self-protection that an ordinarily prudent person would have done [98] Plaintiff did not contract with defendant to work when and where he was working at the time he was injured. He was in the employ of Maloney & Morris. He had no contractual relation whatever with defendant and hence there is no foundation for the application of the doctrine of assumed risk to the facts of the case. 3. Plaintiff’s hand was badly lacerated and caused him considerable pain and occasioned some loss of earnings and we do not think two hundred dollars, the damages assessed, are at all excessive. The judgment is affirmed. All concur.