Roberts v. Missouri and Kansas Telephone Company

• Decision Date: 13 January 1902
• Citation: 66 S.W. 155,166 Mo. 370
• Parties: ROBERTS v. MISSOURI AND KANSAS TELEPHONE COMPANY, Appellant
• Court: Missouri Supreme Court

66 S.W. 155

166 Mo. 370

ROBERTS v. MISSOURI AND KANSAS TELEPHONE COMPANY, Appellant

Supreme Court of Missouri, First Division

January 13, 1902

Appeal from Buchanan Circuit Court. -- Hon. W. K. James, Judge.

Reversed and remanded (with directions).

C. A Mosman and Warner, Dean, McLeod & Holden for appellant.

(1) Under the evidence in this case, the accident to the plaintiff resulted from one of the hazards and perils ordinarily incident to his employment as lineman. Where a lineman, thirty-four years old and of many years experience in that calling, with full notice that numbers of the cross-arms on which he is working were unsafe, and therefore, of the risk he was running in working upon them voluntarily undertakes or continues in a hazardous employment of this character, or to place himself in hazardous positions, or to work with defective tools or appliances, the employer, this defendant, is not liable for injuries received from these known risks. Junior v. Electric Light Co., 127 Mo. 79; Steinhauser v. Spraul, 127 Mo. 562; Wray v. Electric Light Co., 68 Mo.App. 387; Thomas v. Railroad, 109 Mo. 199; Nugent v. Milling Co., 131 Mo. 245; McIsaac v. Electric Co., 172 Mass. 89; s. c., 51 N.E. 524; General Electric Company v. Gallagher, 68 Ill.App. 248. (2) The evidence of the plaintiff at the trial established a clear case of contributory negligence against himself. Under such circumstances, it was the duty of the trial court to pronounce the judgment of the law upon those facts, and nothing was left for the jury. This division of the Supreme Court has recently re-stated the rule in this regard in Davies v. Railroad, 159 Mo. 1. In considering this phase of the case, it should be especially noted that when Roberts attempted to tie the wire on the outer pin, he was acting without any direct order, statement or assurance of any kind whatever from his foreman or his employer, and was under no stress of necessity or haste in the matter. The tests which he could and should have made required but an instant. The following cases amply sustain the defense of contributory negligence. Nolan v. Shickle, 69 Mo. 336; Turner v. Railroad, 74 Mo. 602; Smith v. Railroad, 61 Mo. 588; Wray v. Electric Light Co., 68 Mo.App. 380; Tel. Co. v. Loomis, 88 Tenn. 265; s. c., 11 S.W. 356; Junior v. Electric Light Co., 61 Mo. 84; McGorty v. Telephone Co., 69 Conn. 635; s. c. 38 A. 359; Flood v. Telegraph Co., 131 N.Y. 603; s. c., 30 N.E. 196; Anderson v. Inland Telephone & Telegraph Co., 19 Wash. 575; s. c., 53 P. 657; McIsaac v. Electric Light Co., 172 Mass. 89, 51 N.E. 524; Bergin v. Tel. Co., 70 Conn. 54, 38 A. 888.

C. H. Harrison and Jno. Geo. Parkenson for respondent.

The master is bound to use ordinary care in providing and maintaining a reasonably safe place in which the servant may do his work. Borrows on Negligence, p. 90; Webb's Pollock on Torts, p. 125, and cases cited; Bailey's Personal Injuries Relating to Master and Servant, sec. 241; Buswell on Personal Injuries, p. 371, sec. 192. And it is the duty of the master to inspect and repair and keep in suitable condition the place of work, instrument and appliances. Borrows on Negligence, p. 95; Bailey's Personal Injuries, sec. 250, et seq. The risks assumed by the servant do not include such as result from the neglect by the master to perform his duty to the servant. Henry v. Railroad, 109 Mo. 493. In this case it is said that it must be admitted as a general proposition that an employee assumes all the risk ordinarily incident to the service in which he engages. On the other hand, the master implicitly undertakes to use reasonable care to provide his servant with a reasonably safe place in which to work, and suitable and safe instrumentalities with which to perform his duties. The risks assumed by an employee do not include such as result from the neglect of the master to discharge those personal duties to him. Nicholds v. Glass Co., 126 Mo. 66. The fact that the means of knowledge are equal will not defeat a recovery by the servant if the defect was in fact unknown and the ordinary and careful use would not have revealed it; and this, for the reason that it is not the duty of servants to look out for defects, save such as are open to his observation in the ordinary use of the appliance. Guthridge v. Railroad, 105 Mo. 526; Doyle v. Trust Co., 140 Mo. 18. It is the master's duty to his servant to use reasonable diligence in providing for him a safe place to work, and such duty extends not only to such unnecessary and unreasonable risks which are in fact known to him, but such as he might reasonably be expected to know under the facts and circumstances connected with the service. The servant assumes such risks as are reasonably necessary and incident to his employment, as well, also, as such extraordinary and unusual risks as he may see fit to knowingly assume. But he is not required to exercise the same degree of care and diligence in inspecting and investigating the risks to which he may be exposed as the master, but has the right to presume that the master will furnish him a reasonably safe place to work, and when directed by the master or his alter ego to perform certain services, he has the right to presume that he will not send him into a place of danger, without assuming the risk of so doing. Gibson v. Railroad, 46 Mo. 169; Telegraph Co. v. Loomis, 11 S.W. 356; Electric Co. v. Kelly, 29 A. 427; Nicholds v. Plate Glass Co., 126 Mo. 55; Edison Co. v. Dixon, 42 S.W. 1009.

OPINION

MARSHALL, J.

Action for $ 11,000 damages, for personal injuries received by the plaintiff on September 22, 1898, while in the employ of the defendant, as a lineman. Upon a trial, in the circuit court of Buchanan county, the plaintiff suffered a nonsuit with leave, which that court afterwards set aside, and from which ruling the defendant appealed.

The petition alleges that the defendant, as a part of its plant, has a lead or line of wires in the city of St. Joseph, running from the south part of Eleventh street to and through South Park; that such wires are suspended by cross-arms, attached to poles, about thirty feet high, and placed at intervals of about one hundred feet; that the cross-arms are made of wood, about two and a half inches wide, about four inches deep, and about eight feet long, and are fastened to the poles about twenty feet above the ground; "that this plaintiff was employed by the defendant on said twenty-second day of September, 1898, to fix and securely fasten the wires of said lead to the cross-arms above described, and to tighten the wires on the cross-arms above defendant's where they sagged down upon those of defendant; that in pursuance of his duties on said day, he was negligently ordered to get upon one of said poles and cross-arms on said above-described line or lead in South Park, a suburb of the city of St. Joseph, as aforesaid, by defendant, acting through its foreman and manager in charge of this plaintiff and other men working with plaintiff on this line or lead on said day; that in order to do the act and perform the work required by defendant, plaintiff ascended to the top of said pole and was compelled to stand upon the cross-arm above described of said pole; that said cross-arm of wood had negligently been placed upon said pole in a rotten, unsafe condition and remained there two years or more and was or had negligently been allowed to become rotten, dangerous and unsafe, which was well known to defendant or might have been discovered and known to defendant by the exercise of ordinary care and diligence on its part, but was not known by plaintiff. That this plaintiff, while standing upon the cross-arm as above stated at the direction of defendant and in the performance of his duty, was violently thrown and precipitated to the ground by reason of the said rotten cross-arm breaking and by reason of the negligence of defendant as aforesaid, thereby crushing, mashing and breaking this plaintiff's leg at the ankle."

The answer admits the incorporation of the defendant and that the plaintiff was in its employ as a lineman at the time he was injured; denies generally the allegations of the petition, and pleads affirmatively, first, that the injury was occasioned by one of the hazards or perils ordinarily incident to the employment of a lineman in the defendant's service, and, second, contributory negligence. The reply is a general denial.

The evidence showed the following facts: Plaintiff was thirty-four years old at the time of the accident, and for eight years prior thereto had been working as a lineman for the Western Union Telegraph Company, the Missouri Electric Light Company, of St. Louis, and at different times for the defendant. He was perfectly familiar with the duties of a lineman, and of the risks incident to that work. He knew how to test a pole or cross-arm before going upon it to ascertain whether it was rotten or sound, safe or dangerous. He knew that the life of a cross-arm or a pin in a cross-arm was from six months to six or even ten years; and that they are liable to dry rot, and that no one can tell how long one will last. He had worked on this same line and upon this same pole and cross-arm and had put this same peg or pin in this same cross-arm and strung a wire to it, during the summer immediately preceding the accident. He knew that the tests for ascertaining whether a cross-arm was sound or rotten were to strike it with a hand axe or with the pliers or to dig into it with a screwdriver, or to drive a screw into it. He admits he made no test whatever of the cross-arm. He says it was painted and appeared to be all right, but because it was painted its condition could only be ascertained by applying one of the tests mentioned. The pole was owned by...