Henry v. John O'brien Boiler Works Co. , 151 Mo. App. 591 ( 1910 )

COX, J.

Action for damages for injuries received by plaintiff while in the employ of defendant as a sheet iron-worker’s helper, caused by a piece of sheet iron or steel striking plaintiff in the eye as a result of which the eye was put out. Judgment for plaintiff for $3415', and defendant has appealed.

The errors assigned necessary to be noticed are: First, that the petition is insufficient to support the judgment; second, that a demurrer to the testimony should have been sustained.

.The ground of plaintiff’s cause of action is that the defendant had failed in its duty to furnish him a reasonably safe place to work. The allegations of the petition are, in substance, that plaintiff was employed by defendant corporation as a helper to a sheet iron-worker, and was directed to do such work as the sheet iron-worker, whose helper he was, should order him to do. That he was ordered by the sheet iron-worker to assume a position and stand in a place that was dangerous, and by reason thereof he was injured. That the sheet iron-worker who gave the order knew, or by the exercise of ordinary care could have known, that he was placing plaintiff in a position of danger.

The objection to this petition is that it does not allege that the acts of the sheet iron-worker were negligently done. The pleading would have been in better form had this been done. It is, however, the duty of the master to use ordinary care to furnish his servant a reasonably safe place- to work, and the allegation that plaintiff was directed to obey the orders of the sheet iron-worker made the sheet iron-worker a vice-principal, and the master was, therefore, liable for his acts in ordering plaintiff where to stand and what to do. [Miller v. Missouri Pacific Ry. Co., 109 Mo. 350, 19 S. W. 58; English v. Roberts, J. & R. Shoe Co., 145 Mo. App. 439, 122 S. W. 747.] And since the petition alleged that the sheet iron-worker knew, or by the exercise of ordinary care, could have known that the place in which plaintiff was ordered to stand to do his work was a dangerous one, it was equivalent to an allegation that the order was negligently given, and we think the petition good after verdict.

It is nest contended that the demurrer to the testimony should have been sustained. Plaintiff was a helper , to a sheet iron-worker, and, at the .time of the accident, they were engaged in chipping off a corner of what was called a “breeching.” This breeching was made of sheet iron or sheet steel and was about three ' feet high, three feet long and one foot wide, and was used to connect • the boiler and smoke stack. This breeching was standing on the floor, and plaintiff was directed to stand on one side and hold what was called a “header” against one side of the sheet iron while the sheet iron-worker stood on the other side, and with hammer and chisel chipped off the portion to be trimmed. While they were engaged in this work a piece of the iron chipped off and' flew into the plaintiff’s eye and put it out. If the sheet iron-worker, who was defendant’s vice-principal, was negligent in directing plaintiff to stand in the position he occupied at the time of the accident then defendant is liable; otherwise, it is not. It is common knowledge that in work of this character particles of iron being chipped off are likely to fly and they will usually fly in the direction opposite that from which the chisel is struck. Hence it is apparent that if plaintiff could have been placed in a position where he would be out of danger, and at the same time where he could properly perform the work assigned to him, then it was the duty of the sheet iron-worker to have so placed him. If there were no safer place in which to place plaintiff, then the dangers resulting from the position in which he was placed were incident to the performance of the work, and were, under the law, assumed by plaintiff.

This is not a case in which negligence can be inferred from the fact of injury, but the burden was upon plaintiff to show the negligence of defendant’s vice-principal in ordering him to work in the position in which he placed him. To do this plaintiff was required to show that he might, with reasonable care and prudence on the part of the vice-principal, have been placed in- a more safe position than the one in which he was placed. This was not done. The only attempt in that direction is found in the testimony of one witness who' said, in effect, that the sheet iron-worker could have had plaintiff lie down, or partly down, and turn his head away and hold the header with one hand. The physical facts show that this would have been impracticable. The breeching on which they were working was three feet high, three feet long and one foot wide. The header which plaintiff was required to hold against the sheet iron while it was being chipped, was a piece of steel about twelve inches long and two inches thick, and it is apparent that if plaintiff had crouched down so that his head would have been below the top of the breachiug he could not have held the header with one hand in the way it was required to be held.

A careful reading of this testimony has convinced us that the sheet iron-worker was not shown to have been guilty of negligence in placing plaintiff where he was placed, and as this was the only ground of negligence pleaded, the demurrer to the testimony should have been sustained. Judgment reversed.

All concur.