61 S.W. 806 (Mo. 1901), Pauck v. St. Louis Dressed Beef & Provision Company

Citation:61 S.W. 806, 159 Mo. 467
Opinion Judge:BURGESS, J. Per Curiam. -- The foregoing opinion filed by Burgess, J., in this cause while it was pending in Division Two, of the court, is approved and adopted as the opinion of the court in banc, by a majority of our number. Gantt, Valliant, Marshall and Brace, JJ., concurring in said opinion; Sherwood, J., dissenting.
Party Name:PAUCK, Appellant, v. ST. LOUIS DRESSED BEEF & PROVISION COMPANY
Attorney:Taylor & Taylor and Johnson, Houts, Marlatt & Hawes for appellant. O'Neill Ryan for respondent.
Judge Panel:BURGESS, J. Gantt, Valliant, Marshall and Brace, JJ., concurring in said opinion; Sherwood, J., dissenting. Per Curiam.
Case Date:January 25, 1901
Court:Supreme Court of Missouri
 
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Page 806

61 S.W. 806 (Mo. 1901)

159 Mo. 467

PAUCK, Appellant,

v.

ST. LOUIS DRESSED BEEF & PROVISION COMPANY

Supreme Court of Missouri

January 25, 1901 [*]

Appeal from the St. Louis City Circuit Court. -- Hon. Horatio D. Wood, Judge.

Reversed and remanded.

Taylor & Taylor and Johnson, Houts, Marlatt & Hawes for appellant.

(1) Plaintiff's right of action was not, as a matter of law, barred by any "assumption of risk" on his part by reason of his having remained in the employ of the defendant after he had some reason to know that the switching apparatus was defective, especially in view of the repairs made by the master; and the question of his contributory negligence in so doing was, under the circumstances in this case, for the jury to determine. This is the point upon which this case turns. (a) The danger was from defective appliances. It was not therefore one naturally incident to plaintiff's employment, and was not assumed by plaintiff when he entered the employment. Henry v. Railroad, 109 Mo. 493; Nicholls v. Glass Co., 126 Mo. 66; Bender v. Railroad, 137 Mo. 250. (b) The contention that plaintiff "assumed" the risk of danger from these defective appliances, must rest either upon (1) a contract to assume the risk, or (2) by reason of the application of the maxim "volenti non fit injuria." (2) There can be no contractual assumption of risk by the servant of danger arising from the negligence of the master in providing unsafe or defective applicances. Blanton v. Dold, 109 Mo. 75; Settle v. Railroad, 127 Mo. 343; Railroad v. Norment, 84 Va. 167; 1 Bailey on Personal Injuries, par. 469; Reporters Note, 49 L. R. A. l. c. 62. The law should not and will not, on the ground of public policy, permit or uphold such a contract. Settle v. Railroad, 127 Mo. 343; Blanton v. Dold, 109 Mo., supra; Roesner v. Hermann, 10 Biss. 486; Railroad v. Spangler, 44 Ohio St. 471; Railroad v. Eubanks, 44 Ark. 460; Railroad v. Jones, 2 Head (Tenn.), 517; Railroad v. Orr, 91 Ala. 554; Hissong v. Railroad, 91 Ala. 514; Coal Co. v. Peterson, 39 Ill.App. 514. Railroads are not allowed to contract against their negligence. Why should employees be allowed to make such contracts? Beach on Modern Law of Contract, 1502; Kellerman v. Railroad, 34 S.W. 41. (3) If the maxim of "volenti non fit injuria" is sought to be applied, it is a question of fact, whether the plaintiff fully understood and appreciated his danger; and further whether he was volens. Continuance in service, with knowledge of the danger, can not, as a matter of law (except in the clearest cases) establish the volens and defeat recovery. The question is a question of fact for the jury. Fitzgerald v. Paper Co., 155 Mass. 156; Mahoney v. Dore, 155 Mass. 513; Smith v. Baker, 60 L. J., Q. B. D. 689; Williams v. Birmingham, 68 L. J., Q. B. D. 920; Sword v. Cannon, 1 Sessions Cases (2d series), 499; Yarmouth v. France, 57 L. J., Q. B. D. 7 loc. cit. 11; Brooke v. Ramsden, 63 L. T. (N. S.), 287; Osborne v. Railroad, 57 L. J., Q. B. (N. S.), 618. (4) The question is whether continuing in service after knowledge of danger from defective appliances will defeat plaintiff's action -- under the Missouri decisions; and, in reason, is properly a question of contributory negligence: and is a question of fact for the jury under all the circumstances. Blanton v. Dold, supra; Settle v. Railroad, 127 Mo. 343; Hamilton v. Mining Co., 108 Mo. 376; O'Mellia v. Railroad, 115 Mo. 205; Huhn v. Railroad, 92 Mo. 440; Thorpe v. Railroad, 89 Mo. 660; Patterson v. Railroad, 76 Pa. St. 389; Snow v. Railroad, 8 Allen (Mass.), 441; Dwyer v. Railroad, 52 F. 89; Martin v. Railroad, 94 Cal. 331; Shearman & Redfield on Negligence (5 Ed.), par. 211; Railroad v. Mares, 123 U.S. 710; Epperson v. Telegraph Co., 155 Mo. 335; Bailey on Personal Injuries, 469, 470; Reporters Note, 49 L. R. A. 33, loc. cit. 62; Clark v. Holmes, 7 H. & N. 944. (5) Plaintiff's knowledge of the defective appliance would not defeat his recovery if it was not so glaring as to threaten immediate injury, or if he might have reasonably supposed that he could safely work about it by the use of care and caution. The court can not declare as a matter of law, that the plaintiff was contributorily negligent unless the defect was so manifestly and glaringly hazardous that no prudent man of the same class would remain in the service. Huhn v. Railroad, 92 Mo. 440; Hamilton v. Mining Co., 108 Mo. 376; Stoddard v. Railroad, 65 Mo. 514; Devlin v. Railroad, 87 Mo. 545; Snow v. Railroad, 8 Allen (Mass.), 441; Patterson v. Railroad, 76 Pa. St. 389; Smedley v. Railroad, 118 Mo. 278; Mahaney v. Railroad, 108 Mo. 191; O'Mellia v. Railroad, 115 Mo. 221; Railroad v. Mares, 123 U.S. 710; Epperson v. Telegraph Co., 155 Mo. 335.

O'Neill Ryan for respondent.

(1) This was an action based on negligence, the charge being that the master knowingly furnished defective appliances to the servant. The petition failed to state a cause of action in this -- it failed to allege that the danger and defect were not known to the plaintiff. It was therefore fatally defective and the demurrer was properly sustained. Epperson v. Telegraph Co., 155 Mo. 352; Bogenschutz v. Smith, 8 Ky. L. R. 379; Railroad v. Jackson's Adm., 85 W.Va. 497. (2) The plaintiff's evidence showed that there was no change in the condition, which was obvious, of the apparatus from the time he began work until he was hurt; that he, a man of mature years, knew from the start...

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