Shea v. Kansas City, Fort Scott & Memphis Railroad

76 Mo. App. 29, 1898 Mo. App. LEXIS 149

• Court: Missouri Court of Appeals
• Decided: May 30, 1898
• Status: Published

Opinion

Gill, J.

At a trial in the circuit court plaintiff recovered a judgment against defendant for $1,000 because of personal injuries received by him while engaged in putting up ice in one of defendant’s ice houses at Thayer, Missouri, in February, 1895. Defendant appealed.

statement. The facts, as disclosed by the evidence, are substantially as follows: Plaintiff Shea, while in the defendant’s employ as an ordinary day laborer, was ordered to assist in filling some ice houses at Thayer. He had been working several days in one of the houses, .md that being about filled was ordered to another. This last was about twenty by sixty feet and was being filled by means of tackle rigged and operated through the north end in which there were three doors, one above the other. The house was longest from north to south, and when plaintiff entered the building was filled from the south so that the ice came up to the bottom of the second door about eight feet from the ground. In the south or back end the ice was filled quite to the roof, but as the north doors were approached the ice dropped off by terraces or steps. The cakes of ice, which were about two feet square and of varying width, were thus built up so as to fill the house from back to front. Coming in through one of these front openings a chute was constructed, running back over these terraces of ice to the top of the building, and along this the blocks of ice were drawn by rope and pulleys. The plaintiff, as he was directed, took his place along the side of this chute, up near the top of the house and about ten feet back from the front doors, to assist in sending the ice ropes or drag back to the front. While thus engaged plaintiff stood on one of these terraces or steps, his feet resting upon one or more blocks of ice. After working there about half an hour, he fell, striking his side on the ice and received the injuries for which he sues. Plaintiff was the only witness in his behalf, and he testified that his fall was brought about by the slipping of the cake of ice on which he was standing. Others who saw him say that the ice did not give way but that plaintiff’s feet slipped on the surface of the ice. This, too, was the account given by plaintiff by two separate written statements signed after the accident, and one of which he himself wrote.

The petition in effect charges that plaintiff was ordered to take position on the ice and “after having been at his duty not to exceed thirty minutes, the ice upon which he was standing suddenly and without fault on plaintiff’s part, gave way, slipped from under him and threw and precipitated this plaintiff upon the ice,” etc. And further the petition alleges that plaintiff was so injured by reason of the negligence and carelessness of defendant, in this: “That defendant, its agent and foreman, directed and ordered plaintiff to go upon said ice when the same was in a dangerous and unsafe position, then and there knowing, or having reasonable cause to know that the same was a dangerous and unsafe position and place for plaintiff to be and stand,” etc.

Man™acedoTv" t¡o¿k<Íf risk“?ñhouse.0”: ice After a careful consideration of this entire record, together with the briefs and oral and printed arguments of counsel, we fail to discover any reasonable theory for holding the defendant liable for this accident. In order to charge the result of such misfortunes upon the master the st must affirmatively show that the former has been in some manner negligent either in providing suitable machinery, appliances or places to work, and that the servant unwittingly exposed himself to the danger. The master is bound to exercise reasonable and ordinary care and nothing more; and as to what is l’easonable care should be determined by the circumstances of each particular ease. What now did the defendant do, or neglect to do, in this ease that can be declared negligence? The petition charges that the plaintiff “was ordered to go upon said ice when the same was in a dangerous position.” But in what respect it was dangerous is neither charged nor shown by any evidence. There is no pretense that the ice was carelessly or negligently placed. It was simply laid in tiers and courses, block upon block, horizontally, with no intervening substance to render it unstable or “rickety.” It is a matter of common knowledge that ice is slippery, and that when it is built up in courses of block upon block it may slip. But as to this plaintiff had the same knowledge that defendant had. The dangers then of slipping or falling was as patent to the plaintiff as they were to defendant’s foreman. Such danger or risk then was one of those ordinarily incident to plaintiff’s employment, and for which he can not, on the plainest principles of law, hold his employer responsible.

At the oral argument plaintiff’s counsel was asked to point out the particular omission of duty on defendant’s part. The substance of the answer was that inspection by defendant was negligently omitted. But what would inspection amount to? It could only have discovered what the plaintiff and all others knew, that is, that ice was slippery and might give way, that one block of ice upon another was liable to get out of place. This being discovered, what should the master be expected to do? No remedy was suggested and none within reason could be. The trouble was the inherent, natural and well known tendency of cakes of ice to slip when one is placed upon the face or surface of another. The accident did not occur by reason of any concealed defect that may have been discovered by ordinary care and corrected. And as already stated this comprised one of the dangers or risks incident to the business in which the plaintiff was at the time engaged. As was said in Wray v. Electric Light Co., 68 Mo. App. 380: “If he (the servant) engages in a hazardous employment, or attempts a service necessarily attended with danger, he will be held to assume all risks ordinarily incident to the work. In other words the employer is not an insurer of the safety of his employee.”

Discussion of authorities is unnecessary. The books are filled with a great variety .of such cases which might be cited and commented on through many pages, but it would accomplish no useful purpose. In our opinion the plaintiff, under the evidence, has no case, and the court below ought to have nonsuited him.

Judgment reversed.

All concur.