Cummings v. Collins

61 Mo. 520

• Court: Supreme Court of Missouri
• Decided: January 15, 1876
• Status: Published

Opinion

Hough, Judge,

delivered the opinion of the court.

This was an action for damages for personal injuries sustained by the plaintiff. The petition alleged that the plaintiff was employed as a common laborer by the defendants, who were proprietors of a certain iron foundry, in the city of St. Louis; that on the 31st day of March, 1873, the defendants ordered the plaintiff to assist three other men in rolling a large iron wheel, weighing many hundred pounds, from one place to another in said foundry: that said order was improper, as said wheel was too large to be rolled by four men; that the service thus required of plaintiff, was out of the line of his employment and exposed him to dangers not contemplated by his contract; that he had never received nor executed such an order before; that plaintiff protested against undertaking said work, but said order having been repeated, he undertook its execution ; that the designated line of passage for said wheel was obstructed with various heavy articles; that there was a concealed hole in the floor of said foundry along the line where said wheel was ordered to be rolled, the existence of which was unknown to plaintiff, but was known, or should have beeu known, to the defendants; and, in the execution of said order said wheel was necessarily rolled over said hole, and fell iuto the same and against and upon the plaintiff, breaking his leg and inflicting other injuries of a permanent character.

The petition further formally alleged that the injury to plaintiff was caused by defendants’ fault and negligence in ordering plaintiff to roll a wheel, which was too large to be rolled by hand; in failing to provide sufficient number of men to assist plaintiff in rolling said wheel ; in requiring plaintiff to perform a service out of the line of his employment; in requiring said wheel to be rolled along a passage way too narrow to enable the men rolling it, to control it; in failing to cause the obstructions in the line of passage of said wheel to be removed ; and in permitting said hole to remain in the floor of said foundry.

The defendant demurred on the ground that the petition did not state facts sufficient to constitute a cause of action. Final judgment was entered on the demurrer in favor of the defendants, which was affirmed at general term, and plaintiff has appealed to this court.. The defendants are not liable for any injury resulting from causes open to the observation of the plaintiff, and which it required no special skill or training to foresee were likely to occasion him harm, although he was at the time engaged in the performance of a service which he liad not contracted to render. When a servant of mature years undertakes any labor outside the duties he has engaged to perforin, the risks incident to which are equally open to the observation of himself and the master, the servant takes upon himself all such risks. But notwithstanding the plaintiff assumed all the risks ordinarily incident to the execution of the order given him. yet the defendants are liable for any damages for an injury resulting from a defect in the floor at the place where the service required was to be performed, the existence of which was known to them, but unknown to plaintiff, or would have been known to them had they used ordinary care, and for knowing which the plaintiff did not have equal opportunities with the defendants. If the existence of the defect was really unknown, but should have been known, the fact that the servant had equal means of knowledge, is a matter of defense, and need not be negatived in the petition.

We are of opinion that the petition stated a cause of action, and that the court erred in sustaining the demurrer. The judgments at general and special term will therefore be re-

versed, and the cause remanded.

All the other judges concur, except Judge Yories, who is absent.