Harris v. Kansas City Southern Ry. Co.

• Decision Date: 18 January 1910
• Citation: 124 S.W. 576
• Parties: HARRIS v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

124 S.W. 576

HARRIS v. KANSAS CITY SOUTHERN RY. CO.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

1. MASTER AND SERVANT (§§ 101, 102) — APPLIANCES — DUTY OF MASTER.

The duty of a master to furnish the servant with reasonably safe appliances with which to perform the services requires the master to exercise ordinary care to keep such appliances in a reasonably safe condition; the question of neglect in such respect being determined by reference to the conduct of an ordinarily prudent person under like circumstances.

2. MASTER AND SERVANT (§ 286) — INJURIES TO SERVANT — QUESTIONS FOR JURY.

Plaintiff, a railroad employé, while drawing spikes with a clawbar, the prongs of which were so worn that it was given to slipping away from the spike, threw the weight of his body across the bar, which slipped, and he fell and was injured. Held, that it was for the jury whether the defective condition of the prongs and the likelihood of such use of the bar were such as to bring the resulting injury within the range of reasonable probabilities an ordinarily prudent employer should have anticipated.

3. MASTER AND SERVANT (§§ 101, 102) — APPLIANCES — DUTY OF MASTER.

As a general proposition, the obligation of the master to exercise ordinary care to furnish reasonably safe appliances is the same in respect to simple appliances and simple work as in any other, unless in a case where the appliances and the contemplated use thereof are so very simple and commonplace that an ordinarily prudent person would not reasonably anticipate the danger entailed.

4. MASTER AND SERVANT (§§ 101, 102) — APPLIANCES — NEGLIGENCE.

The question of a master's negligence in furnishing unsafe appliances for work must be determined with reference to the dangers to be reasonably apprehended.

5. MASTER AND SERVANT (§ 203) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

The servant assumes only such risks as are ordinarily incident to the employment, and regarded as reasonably within the contemplation of the parties at the time of entering into the contract of hire.

6. MASTER AND SERVANT (§ 208) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

A clawbar used by plaintiff, an employé, was to his knowledge defective, in that the prongs and the heel of the bar were so worn that when the bar was used to draw spikes from ties, it would slip from the spike, for which reason plaintiff was accustomed to drive the bar under spike heads with a maul. After driving the bar under a spike, plaintiff, instead of pushing down on the bar with his arms, threw the weight of his body across the end, when the

bar slipped from the spike, causing plaintiff to fall, and he was injured. Held that, the bar being a simple appliance, plaintiff assumed the risk of the injury.

Goode, J., dissenting.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by Sam Harris against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed. Cause certified to the Supreme Court for determination; one of the judges having dissented on the ground that the decision conflicts with a ruling of the Supreme Court.

O. L. Cravens, for appellant. Benton & Ruark, for respondent.

NORTONI, J.

This is an action for damages accrued to the plaintiff on account of personal injuries received through defendant's alleged negligence in furnishing him a defective clawbar with which to perform his labors as a section hand. The plaintiff recovered, and defendant prosecutes the appeal.

The evidence tended to prove that plaintiff was a farmer of mature years, and had recently entered the defendant's employ as a laborer upon a section of its railroad. He had been engaged at work on the section about four or five days before his injury. It appears plaintiff had never used a clawbar before the occasion of his injury; and, even though such instruments were frequently used by his associates on the section, he said he was entirely unfamiliar therewith. The defendant's section foreman instructed the plaintiff and his companion to proceed to pull spikes from a pile of ties lying by the roadside, and furnished them with the defective clawbar for the purpose. A clawbar is an iron or steel instrument, about 5 or 6 feet in length, having two prongs, to be inserted beneath the spike head. The heel of the bar on which rests the lift, is immediately underneath the turn of the prongs. The clawbar is operated by inserting the prongs beneath the spike head and bearing down on the elevated end of the bar which results in lifting the spike from the ties. The clawbar with which the plaintiff was instructed to work was defective in that the heel thereof was worn and the prongs for insertion under the spike head on either side of the spike were battered and worn to such an extent that it was impossible to remove the spike therewith unless the bar was first driven under the spike head with a maul, and even then it was likely to, and did frequently, give way or slip. In other words, the prongs or claws of the bar were so battered and worn that they would not adhere to the spike during the time required in the operation of lifting it from its place in the tie. It appears the plaintiff and his companion had been using the bar about 30 minutes when his injury occurred. The mode of operation was for the plaintiff to insert the prongs of the bar beneath the spike head and hold the same while his companion drove it tight thereunder with a maul, whereupon plaintiff would bear down upon the elevated end of the bar and lift the spike. Plaintiff and his companion alternated in this operation. They had pulled not to exceed 10 spikes when the plaintiff was injured. In the operation of removing each spike the bar had slipped or given way one or more times. Plaintiff received his injury in this manner: His companion drove the clawbar tight under the spike head, and plaintiff threw the weight of his body across the elevated end of the bar in the act of bearing down thereon when, because of the battered condition of the prongs, the bar slipped from under the spike head, causing him to fall. As a result of the fall, plaintiff's knee came in contact with a spike in one of the other ties, which inflicted a severe and painful injury.

It is argued by defendant that inasmuch as the clawbar was a simple appliance, and the mode and manner of its use a simple operation, there was no breach of duty on the part of the master in furnishing the same; that is to say, it is suggested that the obligation to exercise ordinary care to the end of furnishing reasonably safe appliances does not obtain when both the appliance and the work to be performed therewith are simple and commonplace. There may be, and no doubt are, cases properly ruled, on the doctrine asserted, but we are not persuaded that it should find application here. The rule obtains generally, we believe, throughout the law of master and servant, that it is the duty of the master to furnish the servant with a reasonably safe appliance with which to perform the services contemplated in the employment. And this duty continues to obtain to the end that the master shall exercise ordinary care toward keeping such appliances in a reasonably safe condition for the purpose intended. The question of neglect in respect of such matters is to be determined by reference to the conduct of an ordinarily prudent person under like circumstances. That is to say, omissions which entail injuries such as might have been foreseen or anticipated by a reasonably prudent person as within the range of reasonable probabilities are regarded as negligent breaches of duty in respect of the obligation referred to. The typical prudent man, whose conduct furnishes the standard to which a master is bound to conform, is supposed to exercise a proper degree of care, not merely in observing existing conditions, but also in forecasting future occurrences. Labatt on Master and Servant, § 140. See, also, sections 141, 142; Gibson v. Pacific R. R. Co., 46 Mo. 163, 2 Am. Rep. 497; Anderson v. Forrester, etc., Box Co., 103 Mo. App. 382, 77 S. W. 486, as to the general proposition. See, also, Fuchs v. St. Louis, 167 Mo. 620, 67 S. W. 610, 57 L. R. A. 136; American Brewing Association v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 538; Pollock on Torts, 36; Loehring v. Construction Co., 118 Mo. App. 163, 94 S. W. 747.

It is conceded the clawbar was defective in that the prongs for insertion under the spike head were so battered and worn as to render it an inefficient instrument; that is to say, because of the defective prongs and the worn condition of the heel of the bar on which rested the lift, it was given to slipping away from the spike when pressure was applied, as was necessary in the process of extracting the spike from the tie. The appliance being such a simple affair, and the work to be performed therewith commonplace in its character, it may be that an ordinarily prudent person would not anticipate that an injury might follow a careful use of the bar in the ordinary way by pressing down thereon with the hands. The ordinary and usual manner to use the clawbar for extracting spikes is to insert the prongs under the spike head and bear down on the bar with the hands, but men frequently perform the task identically as this plaintiff attempted to do when he fell and received the injury complained of; that is, men engaged at such work quite frequently throw the weight of the body across the elevated portion of the bar to the end of lifting a spike which is stubborn or difficult of dislodgement. This is such an ordinary method to pursue in the use of the bar that the defendant must have known the bar in question would likely be so employed. At any rate, it was for the jury to say whether or not the defective condition of the prongs and the likelihood of the use of the bar as indicated were such as to array the resulting injury to plaintiff within the range of...