Dowling v. Gerard B. Allen & Co.

Barclay, J. — This case has been before this court on two former occasions when the principles governing it were fully considered. We have not been asked to overrule any former expressions of opinion on the subject, nor do we see any just reason for doing so. That the case was fairly one to be submitted to the jury on the issues of negligence on the part of plaintiff, [220] and. of defendant, was expressly ruled by the St. Louis court of appeals (6 Mo. App. 195 ) and by this court .(74 Mo. 13 and 88 Mo. 293). It was farther adjudicated then that when an inexperienced youth, as plaintiff was shown to be, is employed to work about dangerous machinery, of whose perils he is known by his employer to be ignorant, and, while' exercising ordinary care in executing the orders of his superior, is injured by some part of the machinery, of whose danger no warning has been given him, and which is not obvious to a person of his age of ordinary intelligence .and prudence, the master will be liable. That King under whose orders plaintiff was directed to work was not a fellow-servant of plaintiff so as to relieve defendant from liability for his negligence in the circumstances shown, was also settled by the former decisions. The instructions given at the last trial are quite as favorable to defendant as the law heretofore declared in the cause by this court would warrant. Indeed they have not even been questioned on this appeal except in ■one particular. This we will consider. It is claimed that the second of plaintiff’s instructions is erroneous in submitting to the jury the question whether he was passing by the shaft when injured when there was no evidence to support such a theory; and that, by submitting that issue, the court in effect eliminated from the case the question of plaintiff ’ s contributory negligence. That instruction reads as follows, viz. : “2. The court instructs the jury that if they find from the evidence that the place where the shaft collar and ■set screw used therewith was situated where the employes of defendant were liable to approach or step over it, and that in so doing such parties were liable to be injured thereby, and that the defendant knew or had reason to know of such danger ; then the law imposed upon the defendant the duty of so boxing and guarding .said shaft and set screw as to protect such parties from [221] injury, or give to such parties reasonable notice of such danger, and if the jury further find from the evidence that the danger from the machinery aforesaid as used by defendant was not apparent to a party of the •age and experience of plaintiff, and that he did not have sufficient or reasonable notice of such danger, and that said plaintiff, without any negligence on his part, by reason of his youth or inexperience, or reliance upon the directions given him, failed to appreciate the danger in passing over or by said shaft and was injured in consequence, the defendant will be responsible therefor and the jury will so find.” ( The italics are ours to emphasize the point of criticism.) It should be first remarked that the same instruction was given at the prior trial (reviewed in 88 Mo.). This court then said, after discussing the declarations ■of law with great care, that “the instructions, except as herein otherwise indicated, we think fairly declared the law” ( Dowling v. Allen, 88 Mo. 299). No error in the instruction now challenged was then suggested. After such an approval and a retrial of the cause based thereon, it would seem that the reasons which would justify the disapproval of the instruction as erroneous now should be somewhat cogent. But the point of criticism is, at best, quite fine, and vanishes, we think, entirely when closely scrutinized. The evidence of plaintiff did not show that he actully passed over the shaft. It appeared that he intended to go over it but was caught before executing that intention. The evidence of defendant tended to show that the space over the shaft at that point was too narrow for the passage of plaintiff. It consequently justified the inference that plaintiff was going by, not over it when hurt. Moreover, the material fact to be found, as indicated in that part of the instruction, was plaintiff’s “ failure to appreciate the danger ” of his situation, whether passing by, or over the shaft at the time. [222] Nor do we think the instruction open to the criticism of removing the issue of contributory negligence from the case. Its own language required the jury to find that plaintiff was without negligence in the premises, and an instruction given for defendant, numbered 4, submitted the same issues to the jury, irrespective' of the question whether he was going over or by the shaft. With these observations nothing further need be-said than that we regard all the questions of law involved in the case as already settled on the former appeals. No point is made in the briefs here upon the-amount of damages awarded, though it was referred to as a ground for new trial on the motion therefor in the circuit court. Nothing having been urged on that subject in this court, we assume that that point has been abandoned. The judgment is affirmed, all the judges agreeing.