124 S.W. 576 (Mo.App. 1910), Harris v. Kansas City Southern Ry. Co.

Citation:124 S.W. 576, 146 Mo.App. 524
Opinion Judge:NORTONI, J.
Attorney:Cyrus Crane and O. L. Cravens for appellant. Benton & Ruark for respondent.
Judge Panel:NORTONI, J. Reynolds, P. J., concurs. Goode, J., dissents. GOODE
Case Date:January 18, 1910
Court:Court of Appeals of Missouri

Page 576

124 S.W. 576 (Mo.App. 1910)

146 Mo.App. 524

SAM HARRIS, Respondent,



Court of Appeals of Missouri, St. Louis

January 18, 1910

          Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.

          Judgment reversed and cause certified to supreme court.

         Cyrus Crane and O. L. Cravens for appellant.

         (1) When a servant has a choice of two ways of performing his labor, one safe, and the other risky, which latter he voluntarily chooses, such choice is contributory negligence precluding recovery for the resulting injury. Montgomery v. Railroad, 109 Mo.App. 88; Moore v. Railroad, 146 Mo. 572; Smith v. Box Co., 193 Mo. 715; Pauck v. Beef Co., 159 Mo. 639; Holmes v. Brandenbaugh, 172 Mo. 66; Anderson v. Box Co., 103 Mo.App. 382; Sparks v. Railroad, 31 Mo.App. 111; Haviland v. Railroad, 172 Mo. 106; Hurst v. Railroad, 163 Mo. 309; Towner v. Railroad, 52 Mo.App. 648. (2) Even if the clawbar was defective and unsuitable, plaintiff knew such fact, or it was a fact perfectly obvious to his senses, and, having continued its use thereafter, assumed the risk of injury therefrom. 1 Labatt on Master and Serv., sec. 154; 1 Bailey on Per. Inj. Relating to Master and Serv., sec. 503; Martin v. Highland P. M. Co., 128 N.C. 265; Webster M. Co. v. Nisbett, 205 Ill. 273; Cregan v. Marston, 126 N.Y. 568; Marsh v. Chickering, 101 N.Y. 396; Relyea v. Tomahawk P. & P. Co., 110 Wis. 307; Garnett v. Bridge Co., 98 F. 192; Railroad v. Minnick, 61 F. 635; 20 Am. and Eng. Ency. Law (2 Ed.), 89; Hefferen v. Railroad, 45 Minn. 471; Miller v. Railroad, 47 N.Y.S. 285; Lynn v. Glucose Co., 104 N.W. 597; Corcoran v. Gas Co., 81 Wis. 191; Holt v. Railroad, 94 Wis. 596; Borden v. Mill Co., 98 Wis. 402; Olson v. Lumber Co., 102 Wis. 264; Steinhauser v. Spraul, 127 Mo. 541; Post v. Railroad, 121 Mo.App. 562; Meyers v. Glass Co., 107 S.W. 1041; Anderson v. Box Co., 103 Mo.App. 302; Bohn v. Railroad, 106 Mo. 429; Nicholds v. Plate Glass Co., 126 Mo. 55; Berning v. Medart, 56 Mo.App. 443; Devitt v. Railroad, 50 Mo. 302; Harf v. Green, 168 Mo. 308; Covey v. Railroad, 86 Mo. 635; Hurst v. Railroad, 163 Mo. 309; Shea v. Railroad, 76 Mo.App. 29; Lucey v. Oil Co., 129 Mo. 32. (3) It was error to allow plaintiff to prove collateral statements and acts contradicting section foreman Cope as to declarations alleged to have been made by him after the injury to plaintiff, drawn out in cross-examination for the purpose of impeaching him as a witness, which statements were not part of the res gestae, nor was it shown Cope had any authority from defendant to make such admissions or perform such acts. Scharff v. Grossman, 59 Mo.App. 199; Lahort v. Buchannan, 50 Mo. 201; Manget v. O'Neill, 51 Mo.App. 35; McDermott v. Railroad, 73 Mo. 316; Aldridge v. Company, 78 Mo. 559; Bevis v. Railroad, 26 Mo.App. 19; Inv. Co. v. Fillingham, 85 Mo.App. 534; Anderson v. Railroad, 161 Mo. 420; Wojtylak v. Company, 188 Mo. 260; Meyer v. Lewis, 43 Mo.App. 417. (4) Failure to define the terms "ordinary care" and "negligence," as used in plaintiff's first and fourth instructions, is error. Hovarka v. Transit Co., 191 Mo. 441. (5) Plaintiff's fourth instruction makes defendant an insurer. Bennett v. Lumber Co., 116 Mo.App. 699; Dunn v. Nicholson, 117 Mo.App. 374.

         Benton & Ruark for respondent.

         (1) That the master's duty is to furnish his servant with reasonably safe tools and appliances with which to do his work and to use reasonable care to keep such tools and appliances in a safe condition has been so often ruled by the appellate courts as to become axiomatic. Huth v. Dohle, 76 Mo.App. 671; Lee v. Railroad, 112 Mo.App. 372; Curtis v. McNair, 173 Mo. 270; Franklin v. Railroad, 97 Mo.App. 473; Bohn v. Railroad, 106 Mo. 429; Huth v. Dohle, 76 Mo.App. 671; Beard v. Car Co., 72 Mo.App. 583; Siela v. Railroad, 82 Mo. 430; Porter v. Railroad, 60 Mo. 160; Covey v. Railroad, 86 Mo. 641; Fouts v. Swift Co., 113 Mo.App. 526. (2) The servant does not assume the risk arising from the master furnishing defective tools and appliances, though the use of such tools may raise a question of contributory negligence upon the part of the servant. Graci v. Construction Co., 121 Mo.App. 709; Koerner v. Car Co., 107 S.W. 481; Brady v. Railroad, 206 Mo. 509; Smith v. Kansas City, 125 Mo.App. 150; Cole v. Transit Co., 193 Mo. 81; Pauck v. Dressed Beef Co., 159 Mo. 467; Zeis v. Brewing Assn., 205 Mo. 638; Kirby v. Coal & Coke Co., 106 S.W. 1069; Huston v. Railroad, 107 S.W. 1045. And unless the danger is so threatening and glaring the matter of the defendant's contributory negligence is always for the jury. Graci v. Construction Co., 124 Mo.App. 719; Pippen v. Railroad, 196 Mo. 321; Obermeyer v. Chair Co., 120 Mo.App. 59; Charlton v. Ry. Co., 200 Mo. 413; Butz v. Construction Co., 199 Mo. 279; Daken v. Chase & Son, 197 Mo. 238; Lee v. Railway, 195 Mo. 400; Sheperd v. Transit Co., 189 Mo. 362; Warren v. Railroad, 113 Mo.App. 498; Kielty v. Construction Co., 121 Mo.App. 58; Clippard v. Transit Co., 202 Mo. 432; Solder v. Railroad, 100 Mo. 673; Rogers v. Rundell, 106 S.W. 1096. And in order to defeat recovery the servant must know and appreciate the danger. Parsons v. Packing Co., 96 Mo.App. 372; Studenroth v. Packing Co., 106 Mo.App. 480. The fact that the work is done in the presence of and under the immediate direction of the master's foreman is equivalent to an assurance that the servant may safely proceed with it; he is not bound in such case to search for danger, but may rely for his safety upon the judgment and conduct of the foreman. Smith v. Kansas City, 125 Mo.App. 157; Herdler v. Stove & Range Co., 136 Mo. 3; Sullivan v. Railroad, 107 Mo. 66. (3) The question of plaintiff's contributory negligence must be determined from a "view of the whole evidence in the most favorable aspect it presents in behalf of plaintiff." Myers v. Transit Co., 99 Mo.App. 369; Rogers v. Printing Co., 103 Mo.App. 683. Where ordinarily there is no danger in the servant adopting one of two ways he cannot be held negligent in so doing. Benedict v. Railroad, 104 Mo.App. 218. (4) It was proper to impeach defendant's witness, Cope, by proving that he had made statements at variance with his testimony. Schlomer v. Transit Co., 204 Mo. 99; Harness v. Transit Co., 102 Mo.App. 216. (5) The doctrine of non-liability where the master furnishes a defective tool or appliance, that is simple and easily understood, has never obtained in Missouri. Warner v. Railroad, 62 Mo.App. 184; Huth v. Dohle, 74 Mo.App. 671; Beard v. Car Co., 72 Mo.App. 671; Reeder v. Zinc Co., 107 S.W. 1016; Duerst v. Stamping Co., 163 Mo. 607; Roberts v. Mining Co., 105 Mo.App. 78; Franklin v. Railroad, 97 Mo.App. 473; Conroy v. Iron Works, 62 Mo. 35; McGowan v. Railroad, 61 Mo. 528; Browning v. Railroad, 118 Mo.App. 449. (6) Both plaintiff and defendant used the terms "ordinary care" in their instruction, without definition, and plaintiff's instruction contained the word "negligence." If defendant had desired these terms defined it was his duty to have asked an instruction defining them. "Mere non-direction is not error." Muehlhausen v. Railroad, 91 Mo. 332; Priesmeyer v. Transit Co., 102 Mo.App. 518; Ilges v. Transit Co., 102 Mo.App. 529; Willingham v. Transit Co., 102 Mo.App. 573; Warder v. Henry, 117 Mo. 545; Kischman v. Scott, 166 Mo. 214; Browning v. Railroad, 124 Mo. 55; Bratton v. Railroad, 120 Mo.App. 270.

         NORTONI, J. Reynolds, P. J., concurs. Goode, J., dissents.


Page 577

         [146 Mo.App. 530] 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 five or six 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 under-neath 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 [146 Mo.App. 531] 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 thirty 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...

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