Shortel v. City of St. Joseph

Black, J. — The plaintiff brought this suit to recover damages for personal injuries received while engaged in repairing a sewer. The work was done by the city engineer, who procured the material, employed the men, and superintended the work by authority of a city ordinance. The petition alleges that after a section of the sewer had been arched over the engineer directed plaintiff and one Murray to go under the arch and remove the supports ; that the engineer assured the plaintiff and Murray that it -was safe to do so ; that, relying upon the assurance, they proceeded to carry out the order, and while thus engaged the arch fell in on the plaintiff ; and that the injury to plaintiff was caused by the negligence of the engineer in causing the supports to be l'emoved before the cement used in the walls had hardened. The answer was a general denial and contributory negligence on the part of the defendant. According to the bill of exceptions the plaintiff introduced evidence tending to prove all of the allegations of the petition, that he was a day laborer not skilled in the work, was not aware of the danger, and that none but a skilled person would, by the use of [119] ordinary care, have foreseen the danger. And defendant offered evidence tending to show that the danger was so obvious and apparent that any person, skilled or unskilled, could, by the exercise of ordinary care, have foreseen and avoided the danger, and that plaintiff was warned of the danger attending the undertaking. The court, at the request of the plaintiff, instructed the jury, that if they believed the engineer, “after the completion of a section of the said sewer, directed the defendant and others to remove the supports under said section, and assured them that it was perfectly safe to do so, when in point of fact it was not safe, and that the plaintiff was unskilled in the matter of safety or unsafety thereof, then the defendant is liable for any injury resulting to plaintiff therefrom, even though the plaintiff, or others in his presence, might have entertained or expressed the opinion that the removal of said supports was unsafe, if the plaintiff, in assisting in such removal, acted upon said assurance of said engineer, unless the danger was so glaring as to be apparent to the mind of an unskilled man.” The court, at the request of the defendant, gave these instructions : “2. Although the engineer ordered plaintiff and Murray to remove the centers, and the removal of them was dangerous and unsafe, yet if, before plaintiff proceeded to remove the same, hecould, by the exercise of ordinary care and observation, under all the circumstances, have ascertained the danger attending such removal, then the plaintiff cannot recover. ‘13. Although the plaintiff was ordered to remove the centers under the arch of the sewer, yet if the removal of such centers at the time and under the circumstances detailed in evidence was such an obviously dangerous and unsafe proceeding that a person of ordinary and common prudence, under all the circumstances, would have refused to remove the same, then it was the duty of plaintiff to have disobeyed such order of [120] defendant’s engineer, and he cannot recover in this case.” The proposition that the engineer was the agent and vice-principal of the defendant corporation is not controverted, and, from the evidence and instructions, it appears to have been conceded on the trial that it was unsafe and dangerous to remove the centers at the time they were removed, and that the plaintiff attempted to remove the centers by the order and direction of the engineer. The real question, therefore, is as to what care, if any, the defendant should have exercised when thus acting under the order of the defendant, for the engineer represented the defendant. The master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. The position of the servant is one of subordination and obedience to the master, and he has the right to rely upon the superior knowledge and skill of the master. The servant is not entirely free to act upon his own suspicions of danger. If, therefore, the master orders the servant into a place of danger, and the servant is injured, he is not guilty of contributory negligence, unless the danger was so glaring that a reasonably prudent person would not have entered into it. Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Railroad, 96 Mo. 209. But these cases show that, though the servant is ordered into a place of danger, still, if the danger is so obvious that a prudent person, though acting in the capacity of a servant, would not obey the order, then he will be guilty of contributory negligence which will defeat a recovery. Now the defendant’s third instruction conforms to the principles of law just stated, so there is no valid objection to it. Indeed, the plaintiff submitted the case to the jury on the same theory, for his instructions conceded that he could not recover if “the danger was so [121] glaring as to be apparent to the mind of an unskilled man.” The defendant’s second instruction does not, it is true, in so many words, contain the proposition that to defeat a recovery the danger must have been so glaring as to be apparent to the mind of an unskilled person ; but it does submit to the jury the question whether defendant was wanting in “ordinary care and observation under all the circumstances.” This instruction must be considered in connection witb\, the others given at the request of plaintiff and at the request of the defendant, which are more specific and point out the circumstances under which the plaintiff could not recover. The instructions taken as a whole are not objectionable. The defendant’s first instruction uses in one place the word plaintiff when it should be defendant, and in another place the word defendant when it should be plaintiff ; still these ai’e mere clerical errors readily discovered upon reading the instructions and constitute no ground whatever for a reversal. Some other objections are made to the instructions, but they are equally unsubstantial. The judgment is affirmed. The other judges concur.