66 S.W. 155 (Mo. 1902), Roberts v. Missouri and Kansas Telephone Company

Citation:66 S.W. 155, 166 Mo. 370
Opinion Judge:MARSHALL, J.
Party Name:ROBERTS v. MISSOURI AND KANSAS TELEPHONE COMPANY, Appellant
Attorney:C. A. Mosman and Warner, Dean, McLeod & Holden for appellant. C. H. Harrison and Jno. Geo. Parkenson for respondent.
Case Date:January 13, 1902
Court:Supreme Court of Missouri

Page 155

66 S.W. 155 (Mo. 1902)

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

[166 Mo. 374] 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...

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