Prophet v. Kemper

• Decision Date: 02 June 1902
• Citation: 68 S.W. 956,95 Mo.App. 219
• Parties: WILLIAM PROPHET, Respondent, v. GEORGE KEMPER et al., Appellants
• Court: Kansas Court of Appeals

68 S.W. 956

95 Mo.App. 219

WILLIAM PROPHET, Respondent, v. GEORGE KEMPER et al., Appellants

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.

AFFIRMED.

Judgment affirmed.

Jas. B Loyd for appellants.

(1) The petition is bad. It shows on its face that plaintiff was guilty of contributory negligence. 5 Ency. Pleading and Practice, pp. 7 and 8, par. 3; Railroad v. Wilson, 134 Ind. 95; Railroad v. Griffin, 100 Ind. 221; Railroad v. Goldsmith, 47 Ind. 43; Fort Wayne v DeWit, 47 Ind. 391; Riest v. Goshen, 42 Ind 339; Ream v. Railroad, 49 Ind. 93; Reynolds v. Copeland, 71 Ind. 422. (2) If injured party assumes the risk or is guilty of contributory negligence in bringing on the injury, he can not recover, and if this fact is shown by his evidence, the case should be taken from the jury. 1 Bailey on Personal Injuries Relating to Master and Servant, secs. 1123 and 1121; Fugler v. Bothe, 117 Mo. 475; Hurst v. Railroad, 163 Mo. 309; Moore v. Railroad, 146 Mo. 572; Devitt v. Railroad, 50 Mo. 302; Aldridge, Admr., v. Midland Blast Furnace Co., 78 Mo. 559; Flynn v. Union Bridge Co., 42 Mo.App. 529.

F. M. Cummings and Howard Gray for respondent.

(1) The refused instructions of the defendants did not declare the law as announced by the courts of this State. Smith v. Coal Co., 75 Mo.App. 177; Devore v. Railroad, 86 Mo.App. 429; Compton v. Railroad, 82 Mo.App. 175; Pauck v. St. Louis Beef Co., 159 Mo. 467. (2) The appellants state that the petition in this cause shows on its face plaintiff was guilty of contributory negligence, and cites in support thereof several Indiana cases. These cases, so far as examined, do not sustain appellants, and in any event the petition is sufficient under the decisions of this State. Devore v. Railroad, 86 Mo.App. 429, and cases therein cited. (3) It has never been held in this State that the plaintiff need allege that he was not guilty of contributory negligence. This is a defense to be alleged and proved by defendants. Petty v. Railroad, 88 Mo. 306; Thompson v. Railroad, 51 Mo. 190; Loyd v. Railroad, 53 Mo. 509. (4) The court will observe, by reading the answer, that defendants alleged that the track on their tramway had been out of repair for several weeks. This was an admission by pleadings, of the negligence of the defendants.

OPINION

BROADDUS, J.

--The plaintiff recovered judgment against the defendants for injuries received while in their employ, on the ground of alleged negligence, from which defendants have appealed.

The defendants, on the twenty-first day of December, 1900, were mine-operators at Joplin, Missouri, and the plaintiff was in their employ as what was known as a tub-runner. The defendants were hoisting mineral and earth from their shaft about three hundred feet from their mill and concentrating plant. To get the material from the shaft to their mill, they had erected a tramway about twenty feet above the surface of the earth, which was placed upon timber supports, upon which was placed an iron track, over which was operated cars. When the mineral and earth was hoisted from the shaft, it was deposited in tubs upon a car, which car the tub-runner pushed along on the track until the mill was reached, when the said material was dumped into the mill, after which the tub-runner shoved the car back to the shaft for another load. There were two of these tub-runners, who met in their work at a certain point on the tramway, where there was a switch to enable them to pass.

As the defendants contend that the plaintiff's petition does not state a cause of action, and that it shows on its face that he is not entitled to recover as he had full knowledge of the defects in defendant's track which caused the injury, we insert herein the material part of the same, to-wit: "That it was the duty of the defendants to have furnished this plaintiff a reasonably safe place to work in the performance of the duties aforesaid. Plaintiff further states that said tramway was built in a careless and negligent manner, to-wit: that on the top the same was about four feet in width, and there was no proper guard rails or banisters along the sides thereof to protect the plaintiff from falling from the top of said tramway. Plaintiff further states that in running his tubs from the shaft to said mill the same were placed on a small car, which ran along on the tracks aforesaid, and that the defendants carelessly and negligently constructed said track and permitted the same to become out of repair and dangerous to run the tubs over, that the rails were loose and when said car and tub of dirt were run over the same, said car, on account of the defective construction of said track, and on account of the same becoming out of repair, would leave the same with great force and throw the plaintiff, who had hold of the same, and place him thereby in great danger of being thrown from the top of said tramway to the ground below. That on or about the twenty-first day of December, 1900, and while the plaintiff was in the employ of the defendants as aforesaid, and working on said tramway in the line of his duties, and running tubs of dirt to said mill from said shaft, and at a point about one hundred feet from the shaft, where the track of defendant had become out of repair and spread, the said car, on account thereof, left said track, thereby throwing the tub of dirt he had hold of, off of said car and track and thereby pulling the plaintiff with it and hurling plaintiff from said tramway to the ground with great force," etc.

While the petition alleges that the tramway was negligently constructed, the plaintiff does not seek to recover for that reason alone, but also because the track had "become out of repair," which we take to signify that it had become unsafe, and had spread. We can not see wherein there is anything on the face of the pleading which goes to show a state of facts which would preclude the plaintiff from recovering. It is true there is a statement therein substantially, that on account of the defective construction of the track and because the same was permitted to become unsafe, the cars would leave the track and "throw the plaintiff who had hold of the same and place him thereby in great danger of being thrown from the top of said tramway to the ground below," but we do not understand the pleader to mean to say that the plaintiff had been thrown from the track at any time other than that of which he complains, wherein he was injured, and we take it that it does not amount to such a statement as would authorize the court to hold that he would be precluded from recovering on the ground of his knowledge of the...