Roberts v. Jones

137 S.W. 639, 156 Mo. App. 552, 1911 Mo. App. LEXIS 342
CourtMissouri Court of Appeals
DecidedMay 15, 1911
StatusPublished

This text of 137 S.W. 639 (Roberts v. Jones) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Jones, 137 S.W. 639, 156 Mo. App. 552, 1911 Mo. App. LEXIS 342 (Mo. Ct. App. 1911).

Opinion

JOHNSON, J.

This is a suit by a servant to recover damages for personal injuries alleged to have been caused by the negligence of the master. The answer is a general denial and a plea of assumed risk. The appeal is from a judgment of $5000, recovered by plaintiff.

[553]*553The material facts disclosed by the evidence thus may be stated: Plaintiff was a laborer employed by defendants, Jones and Cray, who were contractors engaged in the work of widening the roadbed of the Missouri Pacific Railway Company at Jefferson City. Defendant Barton Avas the foreman of Jones & Cray under whom plaintiff Avas Avorking at the time of his injury. To widen the roadbed it was necessary to cut away several feet from the face of a bluff on the south side of the railroad. This bluff was about forty feet high arid consisted in the main of stratified rock. The general course of its face was east and west but there was a jog in the course caused by the east part of the wall being on a line a few feet south of the line of the west part. This jog was abrupt and there was a narrow wall facing east at'the place of the break in the continuity of the face of the bluff which was towards the north. About twelve feet above the foot there was a narrow ledge running along the face and around the jog. Blasting had been done on the narrow wall which faced east and a gang of men under the leadership of the foreman Barton went up on the ledge to shovel the loose material. Under the directions of the foreman, plaintiff, who was a green hand, shoveled on the ledge in front of the narrow wall. While he was in a position five or six feet south of the northeast corner of the wall, an overhanging rock became detached and fell on him. This rock was about two feet long, from one foot to eighteen inches thick and projected out from the face of the narrow wall at a height of about seven feet above the ledge on which plaintiff was, standing. When the foremen ordered plaintiff to work under the overhanging rock he told him the place was safe and it appears plaintiff relied on this assurance. There is evidence that before giving the order the foreman examined the place and made soundings with a crowbar. Five or ten minutes before the injury the foreman and the workmen with the exception of plaintiff went around the corner a few feet to dislodge a rock [554]*554that appeared to be in danger of becoming detached and falling down to the railroad track. This rock was five or six feet long, abont eighteen inches thick, was a part of the stratum of which the rock which fell on plaintiff was a part, and the place where it protruded from the north facing wall was eight or nine feet on a straight line from the rock which fell on plaintiff. The subjoined rough shetch represents the place in a crude way.

The lines designated “Y77 represent the face of the bank; the line marked, “X57 is the narrow wall facing east, “C77 is the line of the ledge on which the men were working. “A77 is the point where plaintiff was standing and where the rock which injured him was overhanging; “B77 is the point where the other men were at work dislodging the loose‘rock.

Just before the rock fell plaintiff heard through the wall the blows of the crowbars the men around the corner were using in dislodging the rock on which they were working and, as the rock fell, the men heard a rumbling in the wall.

The defendant'Barton did not testify and the record does not disclose what the soundings he made indicated to him. So far as outward appearances went the rock which fell showed no signs of instability. An expert witness introduced by defendant testified that the fall [555]*555of the rock could not have been caused by the blows of the. crowbars on the rock at the other end of the stratum. That rock was detached but the witness could not state when, with reference to the fall of the other rock. The petition alleges:

“That said injuries so received by plaintiff as aforesaid were immediately and directly caused by the negligence and carelessness of said foreman, John Barton, in ordering and directing plaintiff to shovel rock and earth from said ledge, aforesaid, when the same was unsafe and dangerous to so work thereon, because of stone, rock and other material overhanging thereat, being loose and likely to fall on plaintiff and to injure him while so engaged in said work, aforesaid, and also by reason of the negligence and carelessness of said foreman in directing one John Ramey (the latter being also a servant of defendants T. B. Jones and Frederick Gray, working under the orders and directions of said foreman) to pry out and displace a rock or stone and material connected therewith (and in assisting said John Ramey so to do) from their positions in the side of said bluff, adjacent to or near the place on said ledge where plaintiff was so at work, as aforesaid, thereby causing the rock or stone and connected material, overhanging plaintiff, to become loose and to fall down on plaintiff and to injure him as already stated herein.

“That plaintiff was ignorant of the dangerous condition of said place (and of the peril incident thereto), at which he was so directed to work by co-defendant John Barton, foreman as aforesaid, of defendants T. B. Jones and Frederick Gray, and they and said foreman knew of said danger and peril to plaintiff thereat, or could have so known by the exercise of ordinary care on their part.”

At the request of plaintiff the court instructed the jury, in part, as follows : “I. The court instructs the jury that if on June TO, 1910, plaintiff was employed in the service of defendants T. B. Jones and Frederick [556]*556Gray, as a laborer or workman, and was engaged in the work of shoveling and removing rock, earth and other material from the ledge on the side of the bluff mentioned in the evidence, then it was the duty of said defendants to exercise reasonable care (so far as the nature and character of the work would permit) to make the place at which plaintiff was so doing said work reasonably safe and secure for him.

“And the jurors are further instructed that if they find and believe from the evidence that defendant John Barton was plaintiff’s foreman as to said work and as such foreman had the direction and control of plaintiff in and about the same, and that said defendant directed plaintiff to go on said ledge and to shovel and remove the loose rock and earth therefrom, and that plaintiff proceeded to carry out the directions of said foreman.

“And if you further find from the evidence that said ledge where plaintiff was directed to work was unsafe and insecure because of the existence of loose rock and earth in the side of the bluff above plaintiff which was liable to fall down on plaintiff and to injure him (if such was the case) and that said foreman knew of the said unsafe and insecure condition of the place where plaintiff was so at work or could have so known by a'reasonably careful inspection on his part, and negligently failed to warn plaintiff of the same or to take reasonable precautions to remedy said condition.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bradley v. Chicago, Milwaukee & St. Paul Railway Co.
39 S.W. 763 (Supreme Court of Missouri, 1897)

Cite This Page — Counsel Stack

Bluebook (online)
137 S.W. 639, 156 Mo. App. 552, 1911 Mo. App. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-jones-moctapp-1911.