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And, since it is practically undisputed that respondent was injured in consequence of the absence of the post, we may drop the question of independent contractor, and proceed to the consideration of the question, Was it negligence on the part of the company for having failed to furnish and maintain the post in question? The evidence of the respondent upon this question was contradictory of, and in direct conflict with, that of the appellants. This presented a question of fact for the jury; and the trial court should have, under proper instructions, submitted it to the jury. The moment the master's negligence enters into the cause of the servant's injury then at that moment the negligence of the master withdraws the doctrine of assumption of risks, or, probably more correctly speaking, the doctrine of assumption of risk does not then apply to injuries caused by such conduct of the master. See cases previously cited. Wherever there is a conflict in the evidence, as here, it is error for the trial court to give a peremptory instruction to the jury to find for either party, but should submit the issues to the jury for determination under proper instructions. We are therefore of the opinion that the circuit court erred in giving the peremptory instruction to find for the appellants.

Counsel for appellants also contend that respondent was guilty of such contributory negligence as should bar his right to a recovery, This contention is based upon the facts that the record shows that respondent knew of the absence of the safety post mentioned, and that he was aware of the danger incident to its absence, for the reason that he complained to Sturges of its absence, and told him that he did not like to work around the mill without the post. To that protest, Sturges replied that the other men did not object to working without it, and if he, the respondent, did not wish to do likewise, he knew what he could do, meaning that he could quit the work. It is upon that state of the record counsel for appellants contend that the court should, as it did by giving the peremptory instruction, declare as a matter of law that respondent was not entitled to a recovery. approaching this proposition, it is well to bear in mind some of the elementary principles of law governing contributory negligence. In the first place, ordinarily, contributory negligence is a defense which must be charged in the answer and established by the defendant by a preponderance of the evidence to the reasonable satisfaction of the jury. It is also equally well settled in this state that when the peril of the servant in the performance of his duty is augmented by the negligence of the master, and the servant, if knowing that the master has been thus negligent, and that such negligence has rendered the performance of his duty more hazardous, continues in the performance of that duty, the question of contributory negligence then arises, and not a question of assumption of risk.

The latest case in this State to which my attention has been called which discusses contributory negligence and the law applicable thereto is the case of George V. Railroad, 225 Mo. 412, 125 S. W.210, where it is said: “But if the servant incurs the risks of place and machinery, which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonable to suppose that it may be safely used or occupied with great skill and care, the mere knowledge of the defects on the servant's part will not defeat a recovery. Negligence on the part of the servant in such cases does not necessarily

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arise from this knowledge of the defect, but is a question of fact, to be determined by the jury from such knowledge and all other facts and circumstances shown by the evidence.” After a careful reading of this evidence we are unable to see how any disinterested, fair-minded man could say that the dangers from working about the mill without the post were so glaring and obvious that a reasonably prudent person would not attempt to work thereat, especially in view of the fact that numerous other employees had for years worked there under the same conditions, and that, too, without sustaining any injury on account of that peril.

There is still another reason why the court should not have declared as a matter of law that respondent was guilty of contributory negligence; and that is, when respondent complained of the absence of a fixed post and of the use of the device furnished by appellants in lieu thereof, he was told by Sturges that others worked with the appliances furnished, and that, if he did not want to do so, he could quit. In Rigsby v. Oil Well Supply Co., 115

Mo. App. 322, 91 S. W., loc. cit. 467, it is said: * “A servant has a right to agree to use implements which are not in perfect order, if he desires. To hold otherwise abridges unnecessarily the freedom of contract. On the other hand, courts should be careful about presuming that a servant accepts a particular risk, unless the conclusion is inevitable. Whether he freely consented to the risk or was constrained in some manner, such as fear of losing employment, is a question for the jury.” “If a danger is not so absolute or imminent that injury must almost necessarily result from obedience to an order, and the servant obeys the order and is injured, the master will not afterwards be allowed to defend himself on the ground that the servant ought not to have obeyed the order." (1 Labatt on Master and Servant, sec. 439, p. 1241.) In the case of Richmond & D. Railroad Co. v. Norment, 84 Va., 172, 4 S. E. 214, it is said: “The third instruction of the defendant is to the effect that an employer is released from all liability for negligence, although aware of its continued existence, if the injured employee continued to work for him after he knew of the negligent and dangerous manner in which the employer allowed his business to be conducted. It was palpably improper. It is sanctioned neither by reason, justice, nor law. The usual and legal duty of every employer is to provide all means and appliances reasonably necessary for the safety of those in his employment. It is a cruel, an unhuman doctrine that the employer, though he is aware that his own negligence to furnish the proper safeguards for the lives and limbs of those in his employment, puts them in constant hazard of danger, is not to be held accountable to those employees who, serving him under such circumstances, are injured by his negligent acts and omissions, if the injured parties, after themselves becoming cognizant of the peril occasioned by their employer's negligent way of conducting his business, continue in his employment and receive his pay, though they may be virtually compelled to remain by the stern necessity of earning the daily food essential to keep away starvation itself.”

Now, if we apply the rule before stated, which is so well settled in this State and elsewhere, we must hold that respondent did not voluntarily assume the perils caused by the absence of the post, and that his conduct in remaining at his post of duty under the circumstances detailed in evidence was not such as to have warranted the trial court jury.

in declaring as a matter of law that he was guilty of such contributory negligence as would bar his right of recovery. Under the evidence disclosed by this record, the court should have submitted, under proper instructions, the question of contributory negligence to the

Because of the errors before mentioned, we are clearly of the opinion that the action of the circuit court in giving the peremptory instruction on behalf of the appellant company was reversible error, and for that reason that court properly sustained respondent's motion for a new trial.

It is finally insisted by counsel for appellant Sturges that the action of the trial court in giving the peremptory instruction in his behalf was proper, even though it should be conceded or held that said action of the court was erroneous in so far as it related to the appellant company, and for that reason the subsequent action of the court in granting a new trial as to him was erroneous. This insistence is predicated upon the contention that he was an employee and foreman of the appellant company, having had charge of the milling department, and that the evidence fails to show that he was guilty of any positive wrong or malfeasance toward respondent. If that contention is true, then clearly Sturges would not be liable to respondent, for the law is well settled in this State that the foreman is not liable in damages for personal injuries sustained by a servant of the master in consequence of the foreman's nonfeasance or mere neglect of duty. [Cases cited.] The difficulty with this contention of appellant Sturges is the evidence not only tends to show that he was guilty of misfeasance toward respondent, but also that he was an independent contractor in manufacturing the iron bars mentioned in the evidence, and that, in consequence of his negligence, respondent sustained the injuries complained of. We will discuss this phase of the case under three subdivisions: First. There was evidence introduced which tended to show that Sturges ordered respondent to perform his duties as catcher or quit his job, when informed of the existence of the peril caused by the absence of the protecting post, mentioned in the evidence. So ordering respondent into such a place of danger, if it was a dangerous place, was a positive wrong or misfeasance on the part of Sturges, even though it be conceded that he was not an independent contractor, but simply an employee representing the appellant company in the mill department. For that wrong, if wrong it was, he is jointly liable with the company to respondent for the injuries sustained by him in consequence thereof. Second. If Sturges was an independent contractor, manufacturing the bars mentioned, as there was evidence tending to show, then he would be liable to respondent, if the jury should find that it was true, as the evidence farther tended to prove, that the piles of iron of which the billets were made were negligently constructed. Third. If Sturges was such independent contractor, and that he negligently failed to trim the ends of the bars when needed, as there was evidence tending to show, and that in consequence thereof the bar which injured respondent caught in the rollers, and in consequence thereof he was injured, then he would be liable in this cause. This would be true whether the shears were out of order or not, for the reason that he had no right to run a bar in that condition through the rollers, and that was true whether the shears were out of order or not. In passing it might be well to state that if Sturges was an independent contractor, as contended by appellant company, then it would not be liable to respondent for any injuries sustained by him in consequence of the facts mentioned in subdivisions 2 and 3, for the reason that they were caused by acts over which the company had no control. We are therefore of the opinion that the court properly granted a new trial as to Sturges also.

For the foregoing reason, the judgment should be and the same is hereby affirmed.



kansas, 132 Southwestern Reporter, page 989.—John Carbaugh, a contractor in the city of Fort Smith, Ark., had secured a contract for the building of a factory and undertook to procure the services of one O'Neal, a stone contractor, to lay the foundation of the building. O'Neal refused to take the contract for the reason that the masons in his employ would not work on the building if Carbaugh was to erect the superstructure. Carbaugh alleged that his failure to secure the necessary assistance in constructing the building caused him a loss of $2,500. Carbaugh was also a manufacturer of brick and had arranged for the sale of brick for certain buildings, but the sale was not consummated because members of the bricklayers' union informed their employers that they would not work the brick if purchased from Carbaugh. Carbaugh estimated his damages on this account at the sum of $500 and sued Meier, president of the stone masons' union, McCauley, its secretary, and one Riddick, secretary of the bricklayers' union, to recover damages in the amount of $3,000. Carbaugh subsequently died and the suit was prosecuted by C. E. Speer, his administrator. The unions had a rule requiring their members to work only for employers who employed union labor exclusively. Carbaugh was considered by the unions as unfair because he employed nonunion laborers and refused to employ only union labor. In summing up the evidence, Judge Wood, who delivered the opinion of the court, said that “the testimony as a whole shows conclusively that Meier had no personal ill will or animosity against Carbaugh, nor did any of the other appellants, their sole reason for refusing to lay the foundation for their employer, O'Neal, on a building the superstructure of which was to be erected by Carbaugh was that Carbaugh employed to do his work nonunion labor, and would not employ exclusively union labor.” Carbaugh alleged a conspiracy to cripple and destroy his business and a boycott against the use of his brick. No official boycott, however, had been declared by the unions against Carbaugh. It was attempted, but was "ruled out of order, and no attention paid to it at all.” A verdict was returned in Carbaugh's favor in the circuit court of Sebastian County in the sum of $2,233, whereupon the defendants appealed and secured a reversal of the decision of the lower court, as appears from the following quotation taken from the opinion of the supreme court:

The court should have directed a verdict in favor of appellants. We do not discover any evidence in the record of a conspiracy upon their part to injure the business of Carbaugh. No attempt was made by them either individually or collectively to dissuade O'Neal, for whom they were working, from entering into the contract with Carbaugh to lay the foundation of the Fort Smith Biscuit Company's factory. Nor does the evidence show any effort upon the part of these appellants to prevent Zimmerman from buying brick from Carbaugh. Certainly there is no evidence in this record that these appellants severally, or in combination, used any violence, or any threats, intimidation, or coercion of any character, whereby to prevent Carbaugh from securing the contract to build the factory for the Fort Smith Biscuit Company, nor from securing the contract for the sale of brick to Zimmerman for the Fort Smith Supply & Construction Company. Giving the evidence its strongest probative force in favor of appellee, it only warrants the conclusion that appellants had agreed among themselves, as members of union labor organizations, that they would not work for Carbaugh because he was on what they term the “unfair list;" that is, he employed nonunion men when he could get union men for the same work.

There is no evidence that the union labor organizations took any official action towards “boycotting” Carbaugh because of his attitude towards union labor. On the contrary, the evidence is that such action was “attempted, but ruled out of order.” There is no evi-, dence of any conspiracy or confederation among appellents to injure Carbaugh's business by boycotting him; i. e., by threatening injury to the trade, business, or occupation of those who might have or who intended to have business relations with him. True, O'Neal testified that but for the interference of the stonemasons' union and some of its members, Meier and McCauley, he would have put in the foundation for John Carbaugh, but he further testified to the facts which, in his mind, constituted the interference, which were that Meier and McCauley said, when he asked them about it, that they and the members of the stonemasons' union would not work for him in laying the foundation of the biscuit company factory if Carbaugh should have the contract to build the superstructure. He testified that these men had been in his employ 12 or 15 years; that he did not wish to change his men with the job; “that it would have put him in bad standing; and that he would have been in the same place Carbaugh is, had he done so." But the conclusion of the witness O'Neal as to what might have been his standing with union labor and what might have been the effect upon his business, had he accepted the contract and laid the foundation for Carbaugh with other than union labor, is not based upon any evidence in this record showing that appellants by any word or act on their part threatened him with any such consequences as he says he apprehended. The language employed by them certainly contained no element of intimidation or coercion, and the evidence does not disclose that in the manner of its use appellants intended that it should have the effect to intimidate or coerce O'Neal into refusing to take the contract from Carbaugh.

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