McDonald v. Central Illinois Construction Co.

HENRY S. CAULFIELD, Special Judge. Suit for damages for personal injuries resulting to' plaintiff in consequence of an earth embankment caving in upon him while he was working in a trench at the base. He recovered judgment for $4200 against the defendants, Central Illinois Construction Company and St. Louis Electric Bridge Company, and both of them have appealed. This is the second time the case has been here on appeal. [See 183 Mo. App. 415, 166 S. W. 1087.] The suit proceeds as for the breach of the •obligation of the defendants, as plaintiff’s employers, to exercise reasonable care to furnish him a reasonably safe place to work, and the - petition avers, also, that defendants negligently sent plaintiff into a dangerous place to work without apprising him of the danger, though he was inexperienced and ignorant in the premises and defendants knew it. The answer of the Bridge Company was a general denial; that of the •Construction Company contained a general denial, an admission that plaintiff was in its employ, a plea of assumption of risk and of contributory negligence. The defendant Central Illinois Construction Company offered no evidence. The defendant St. Louis Electric Bridge Company offered none, except a portion of plaintiff’s testimony given on a former trial. The facts will sufficiently appear in connection with our disposition of the questions involved. The defendants contend that the trial court erred in overruling their respective demurrers to the evidence. Under this head they suggest that, inasmuch as plaintiff’s work'had to do with the shoring up of the hank, by the caving in of which he was injured, he was engaged in making an unsafe place safe, and therefore the rule requiring the master to furnish the servant with a safe place to work does not apply. [Citing Henson v. Armour Packing Co., 113 Mo. App. 618, l. c. 621, 88 S. W. 166, and Miller v. Walsh, 145 Mo. App. 131, l. c. 135, 129 S. W. 458.] It is true that, when plaintiff was injured, he was engaged as a laborer in [65] digging a place opposite, but near, tbe embankment, in which, it was contemplated by defendants’ foreman, the end of a plank should be inserted, with a view to shoring up the embankment, but it also clearly appears that plaintiff had no supervision or control over the work of shoring, no duty to inspect, no right to determine the time or manner of doing the work, was not his own boss, and was doing a mere detail of the work under the immediate control, orders and direction of the defendants’ foreman, who had complete charge and control of the whole work. Under these circumstances the rule, urged upon us by defendants, that the master is not liable to the servant for injuries sustained while engaged in making a dangerous place safe, etc., has no application. [Corby v. Missouri & Kansas Tel. Co., 231 Mo. 417, 132 S. W 712; Reid Coal Co., v. Nichols (Tex. Civ. App. 1911), 136 S. W. 847; Bloomfield v. Worster Construction Co., 118 Mo. App. 254, 94 S. W. 304; Hall v. Wabash R. R. Co., 165 Mo. App. 114, 145 S. W. 1169.] Nor is there any room in this case for the suggestion that plaintiff, having knowledge of the danger, assumed the risk. The evidence tends to prove that plaintiff’s injuries resulted from the defendants’ negligence, and the servant never assumes the risk of the master’s negligence. If the plaintiff had knowledge of the danger, then that is a fact to be considered under the plea of contributory negligence, but under that head such knowledge precludes a recovery only when the danger is so obvious that a man of ordinary prudence, under the circumstances, would have refused to do the master’s bidding. [Wendler v. People’s House Furnishing Co., 165 Mo. 527, 65 S. W. 737.] While the evidence tends to prove that, to the experienced eye, the wall was in immediate danger of falling and therefore the defendants’ foreman was negligent in ordering plaintiff to work under it, without at least warning him of the danger, it also discloses that plaintiff was utterly inexperienced in the premises, and that the [66] danger was not so obvious to a man of ordinary prudence, under the circumstances, that we may declare him guilty, as matter of law, of negligence in not refusing to obey the order of his foreman. While he testified that he thought that the embankment was not • safe, was dangerous, or that the defendants’ foreman would not want to shore it, he also said that he did not Imow that it was dangerous; that he thought the foreman would not send him into the place -if it was dangerous ; that when they put him to work there he figured that it was safe. It appeared that the wall had stood as it was for some two months; and taken as.a whole it may be inferred that while, in a general way, plaintiff concluded that the shoring was necessary in order to make the embankment safe, there is no conclusive, if any, showing that the imminence of the danger was obvious to him or should have been. Defendants further contend that the following in-, struction, given by the trial court of its own motion assumes that defendants were negligent and authorizes a verdict for negligence not pleaded: “In accepting employment in the service of the defendants, or either of them, for the performance of the work shown in the evidence, plaintiff assumed all the ordinary dangers and hazards pertaining to such work, and should the jury find from the evidence that the injury sustained by plaintiff, if- any, was the re-suit of an accident and not the negligence of the defendants, as explained in other instructions, liable to occur in the performance of the work in which he was engaged át the time of said accident, but was a risk incident thereto, then the plaintiff cannot recover, and the jury should find for the defendant.” This form of instruction was approved in the case of Fogus v. Chicago & A. R. R. Co., 50 Mo. App. 250, l. c. 272. It is favorable only to the defendants, and there is nothing in its language to indicate an opinion of the trial judge as to the facts. It does not assume that defendants were negligent. [67] Nor are we persuaded that it authorizes a verdict for negligence not pleaded. To say, as in - effect this instruction did say, that plaintiff could not recover if defendants were guiltless of negligence, does not convey the thought that plaintiff might recover if defendants were guilty of any negligence “under the sun.” That thought was not suggested by the instruction. The instruction does not authorize a verdict at all. It does not purport and could not be taken to state the circumstances under which plaintiff might recover, but in general terms, wholly favorable only to the defendants, merely narrowed the field for consideration by the jury. And the fact that another instruction gives the usual definition in general terms of “ordinary care” and states that “the omission of such care is'negligence in the sense in which that word is used in these instructions” and the fact that the word “negligence” is literally used only in the_ instruction under consideration,-do not alter our view above expressed. The court did not err in admitting evidence of plaintiff’s inexperience. The petition sufficiently alleges the dangerous and unsafe condition of the place in which plaintiff was put' to work, that defendants knew, or by the exercise of ordinary care would have known, of such condition, and negligently sent him into the place to work without protection or notice of any kind, though he was ignorant and inexperienced in the premises, and defendants knew that he was, and that plaintiff was injured “by reason of the negligence of defendants above mentioned.” This was a sufficient statement to admit evidence of plaintiff’s in-' experience. Defendants contend that the court erred in that part of the instruction on the measure of damages that allows the plaintiff to recover “the loss, if any, of the earnings of plaintiff’s work as a laborer, which the jury may believe from the evidence plaintiff has sustained by reason of his injuries and directly caused thereby, such earnings, if any, to be based on the rate [68] .not exceeding $2 per day.” There was evidence that thóugh plaintiff was employed as a laborer at $2 per day at the time he was injured, and that .had been his vocation prior to his injury, he did subsequently do some work (the exact nature of which is not disclosed) in a small grocery store and also worked some “at the butcher business.” And defendants contend in effect that his recovery should have been limited to the difference between what he actually earned and what he would have earned as a laborer. This appears to us to be drawing too nice a distinction in the use of language. It would seem that he could have suffered no greater “loss” in his earning as a laborer than the difference mentioned, and the jury must have so understood. If the defendants wished the instructions to be more explicit in the respect complained of they should have made a request to that end. Defendants complain that the trial court refused an instruction directing that plaintiff could not recover for permanent insomnia. But the court did instruct the jury that they could not allow plaintiff anything for “permanent nervous injuries and shock,” and we are . of the opinion that that sufficiently excluded insomnia which is but a symptom of nervous injury and shock. Moreover, the defendants asked twenty-one instructions, a number so great as to tend to produce confusion and resultant error, and we are therefore not inclined to examine critically those refused. The objection that the verdict is contrary to the instructions is not available to the defendants because it was not called to the attention of the trial court in the motions for new trial. We have duly considered the other points suggested in defendants’ brief and do not consider them worthy of extended discussion. They are without any substantial merit. The judgment is affirmed. Reynolds, P. J., and Allen, J., concur.