Lucey v. Hannibal Oil Co.

Burgess, J. This is an action by plaintiff to recover damages for personal injuries sustained by him while a laborer in the service of defendant. The action is predicated on the' negligence of defendant in propping up a latteral crossbeam in the building where he was required to work in the discharge of his duties, in consequence of which the crossbeam fell and struck him on the head and arm and injured him. The defense was assumption of the risk, and contributory negligence on the part of plaintiff. [38] At the conclusion of the testimony introduced by plaintiff, defendant interposed a demurrer thereto, which was sustained by the court and final judgment rendered for defendant, from which plaintiff appealed. Defendant is engaged in buying and selling coal oil, and, • at the time of the injury and prior thereto, stored its barreled oil in a wooden warehouse, where plaintiff was hurt. At the time of the accident he was about fifty-one years of age, and had been in defendant’s service about five months. On the eighteenth day of January, 1893, while plaintiff and another employee engaged in the same service were taking and removing barrels of oil from said warehouse, they discovered that three of the joists or crossbeams were pulling away from the north wall of the building and were about to fall. Defendant’s president Chester Carter’s attention was then called to the condition of the crossbeams, when he ordered plaintiff another employee, Nau, to prop them up. The props were then obtained, and, with the assistance and superintendence of Carter, plaintiff and Nau placed them under the crossbeams, one end being placed against the beams, and the other on the ground. The props were not properly adjusted; they were not set straight, which was patent, and plaintiff well knew that their condition rendered the beams unsecure and dangerous. He so stated in’his evidence before the jury. With respect to the unsafe condition of the beams he testified as follows: UQ. After you got it done, why did you tell Bert Carter it was not fixed right; that it was dangerous? A. Bert Carter came there and he said to his father: ‘You are here again.’ He never made him any answer. Then I said: ‘Bert Carter, if this is left this way it will kill somebody, he is not doing it right, the props ought to be put straight.’ [39] 11Q. Why did you think it would kill somebody? A. I did not think he had fixed it right. “Q. What was the reason you thought it would kill somebody; did you think it would fall? A. I did not know, I did not think it would be myself. UQ. You thought it would kill somebody? A. I did not know whether it would or not. I told Bert Carter if it was left so it would kill somebody. “Q. That is the way you left it? A. Yes, sir. “Q. How did you think it would kill somebody? A. I said if it was left that way it would kill somebody. “Q. Why? A. I saw Mr. Carter was not propping it right. “Q. In what respect? A. Because he was not putting the props straight under. “Q. At the time you said to Bert Carter it would fall and kill somebody you knew the condition of it then? A. No, sir, I didn’t know. “Q. What did you say that, for? A. Because I saw he was not propping it right, that is the reason I said that. “Q. You mean he was not propping it in a safe way? A. I thought he was not, that is, if it was left in that way. “Q. You helped him do that? A. Yes, sir. “Q. It was left in that condition? A. Yes, sir.” The props were only temporary but remained in the same condition as originally placed, until the twentieth day of January, 1893, when plaintiff was engaged in his usual employment of rolling barrels of coal oil out of the warehouse, and while rolling a barrel immediately under one of the beams. it fell upon him and caused the injury complained of. It is a familiar principle that a person entering the service of another assumes all risks naturally incident [40] to, and within the scope of, that employment. Or, if, after his employment, and in the course thereof, he discovers manifest danger, and continues his service without complaint, he will be presumed to have assumed the risks. There is no pretense that plaintiff was ordered into a place of danger by his employer, or that he was injured while obeying the command of his master in doing something not in the ordinary course of his employment. In such circumstance there is no assumption of risks and the master is responsible for any injuries sustained by the servant, while acting in obedience to the command of the master, unless the danger was so manifest. that no prudent man would have entered into it, or the servant was guilty of negligence contributing directly to his own injury. In the case in hand, plaintiff knew all about the dangerous condition of the beam, having assisted in placing and adjusting the props under it. It was not a latent defect of which he had no knowledge and of which his employer knew, or might have known by the exercise of that degree of diligence that is required of the master in furnishing a safe place for his servant to work. They both knew its condition. Here the danger was not only apparent but plaintiff assisted in making it dangerous. Yet he continued to remain in the same service as before, and to perform his service with a knowledge of the increased risk, in the face oY danger which he knew existed, and to which he was exposed, and now seeks to compel his employer to respond in damages for injuries to his person, sustained by him in consequence of risks which he must be held to have assumed. This he can not do. Sowden v. Mining Co., 55 Cal. 443; Smith v. Sellars, 40 La. Ann. 527; Missouri Furnace Co. v. Abend, 107 Ill. 44; 14 Am. and Eng. Encyclopedia of Law, 856; Feely v. Pearson Cordage Co., 37 N. E. Rep. 368. [41] While the props that were placed under the beam were only temporary, there was no promise by defendant to make the beams at some future time more secure, by reason of which plaintiff was induced to continue in its service. Furthermore, the evidence showed that plaintiff could have rolled the barrels which he was engaged in moving at the time of the injury, out of the building without incurring any risk, by keeping away from the props, had he taken the time and trouble to have moved out of his way other barrels of oil, and empty barrels. From what has been said, the judgment should be affirmed. It is so ordered.. All of this division concur.