Williamson v. Light Power Co. , 281 Mo. 544 ( 1920 )

Demurrers were sustained by the court to three petitions of plaintiff, who stood on the third one, refused to amend and prosecuted this appeal from a final judgment rendered against him. This is the third amended petition, omitting caption and signatures:

"Plaintiff by leave of court first obtained files this her third amended petition and for her cause of action states that she was the lawful wife and now is the widow of Joseph Williamson, deceased, who died in the City of St. Louis, on the 8th day of December, 1914.

"That defendant, Union Electric Light Power Company, is and at all times hereinafter mentioned was a corporation duly organized and existing under the laws of the State of Missouri, and engaged in supplying electricity, heat and power in the City of St. Louis, and was also engaged by and through its agents and servants in operating the electric machinery, engines, and steam boilers, and had control over the equipment and appliances used in connection therewith, in the Pierce Building in said city, and by means thereof supplied said building with electricity, heat and hot water service.

"That on all the dates hereinafter mentioned the said Joseph Williamson, deceased, husband of plaintiff, was in the employ of defendant Union Electric Light Power Company as a fireman in said Pierce Building, and that his duties were to fire and assist in firing the steam boilers in said building and to regulate and assist in regulating the dampers on said boilers.

"That in order to regulate the damper on said boilers said deceased was ordered and required by defendant, its servants and agents to climb up a wooden ladder from the floor of the boiler-room to a platform twelve feet above the floor, which said platform was twelve feet long and about ten or twelve inches in width and was fastened between two brick columns and against the rear wall of the furnace at the rear end of said boilers, and said deceased was compelled to stand on said narrow platform while regulating said dampers upon said boilers and reach up six feet above said platform in order to regulate and adjust said dampers; that said platform upon which it was necessary for deceased to stand in order to perform his duties was unsafe and dangerous in this, that it was too narrow a space wherein to perform his labors with safety, and that the same was not equipped with a railing.

"Plaintiff further states that it was exceedingly dark upon said platform and at the place where deceased was required to perform his labors and that defendant failed to exercise reasonable care to provide a reasonably safe place on which for plaintiff's husband to perform his duties, in this, to-wit, that said defendant negligently failed to put a railing around said platform or to widen the same to a width sufficient so that deceased would have been able to perform his duties thereon with safety, and negligently failed to provide adequate and proper lights on or near said platform.

"Plaintiff further states that said defendant knew, or by the exercise of reasonable care could have known, said platform was an unsafe place for deceased on which to perform his labors.

"Plaintiff further states that on, to-wit, the 4th day of December, 1914, while deceased was in the performance of his duty and was exercising ordinary care and while regulating said dampers on said boilers, and by reason of the narrow and unsafe platform on which he was compelled to work by defendant, and because of the negligent failure of defendant to properly light said platform and to widen said platform and equip the same with a railing, deceased lost his footing and balance and fell from said platform to the cement floor below, injuring himself and fracturing his skull, and died as a result of said injuries on, to-wit, the 8th day of December, 1914.

"Plaintiff further states that she was wholly dependent upon the deceased for support and that his earning capacity was $____ per month, and that by reason of the negligence of the defendant aforesaid, she has been damaged in the sum of ten thousand dollars.

"Wherefore plaintiff prays judgment in the sum of ten thousand dollars, together with her costs in this behalf expended."

The alleged negligence of the defendant consisted in ordering and requiring deceased to stand twelve feet above the floor of the engine room of the Pierce Building, on a platform ten or twelve inches in width, and in that place regulate the dampers of the boilers by reaching six feet above the platform. This board or platform is alleged to have been unsafe because too narrow for deceased to perform his labors on with safety, and because it was inadequately lighted, and had no railing to prevent a person on it from falling off. We have concluded these averments, particularly the one that it was dark on the platform, tendered an issue to be answered and submitted to a jury, as to whether defendant fulfilled its duty as employer to use ordinary care to furnish its employee, the deceased, a reasonably safe place in which to perform his task of adjusting the dampers of the boiler.

Defendant asserts that the deceased assumed the risk of injury from working on the platform, because its height and dimensions were apparent, and whatever danger there was in adjusting the dampers while standing on it, was apparent, too. That the deceased assumed the risk, under those conditions, especially if they existed when deceased took his job, probably is the law in most jurisdictions. [1 Shear. Redf. Negligence (6 Ed.), secs. 207e et seq., original Sec. 185, and cited cases.] It is not in this one. The doctrine of this court is that an employee only assumes such risks, in respect of the place where he is put to work, as are incident to the service after the employer has performed his duty by using care to provide a place of reasonable safety. And although the danger of the place may be obvious, if this is due to lack of care on the part of the master to furnish a safe place, the servant does not assume the risk. Adjudications to the contrary may be found; but for a long time the rule of decision of the courts of this State on the subject has been as stated. [Williams v. Pryor, 272 Mo. 613, 621; Fish v. Railroad, 263 Mo. 106, 112; Curtis v. McNair, 173 Mo. 270.] Many other cases of the same character might be cited.

Neither can we accept the proposition that the deceased so obviously contributed by his own negligence to cause his death, that he should be ruled to have done so as a matter of law. Unless to perform on the platform the work he was occupied with when he fell, appears conclusively from the allegations to have been plainly hazardous to a degree that would have deterred a man of ordinary prudence from the task, the deceased cannot be defeated on the score of contributory negligence. [Williams v. Pryor, 272 Mo. l.c. 623; George v. Railroad, 225 Mo. l.c. 411; Jewell v. Bolt Nut Co., 231 Mo. 201.] We are speaking now of the facts as shown in the petition. Of course on a trial it may be proved that the negligent way in which the deceased moved about the platform, or some other careless act of his, contributed to cause him to fall. The averments of the petition fall short of convicting the deceased of negligence beyond an inference to the contrary. Decisions on the subject are reviewed in Jewell v. Bolt Nut Co., supra.

The judgment is reversed and the cause remanded, with directions to set aside the judgment and the order sustaining the demurrer and permit the defendant to answer, if so advised. All concur.