Sinberg v. Falk Co.

• Citation: 72 S.W. 947,98 Mo. App. 546
• Parties: SINBERG v. FALK CO.
• Decision Date: 02 March 1903
• Court: Court of Appeal of Missouri (US)

72 S.W. 947

98 Mo. App. 546

SINBERG v. FALK CO.

Court of Appeals at Kansas City, Missouri.

March 2, 1903.

INJURY TO EMPLOYÉ—ASSUMPTION OF RISK— SAFE PLACE TO WORK.

1. Whether an employé has assumed the risk, and so is barred from recovery, is a question for the jury; the evidence being conflicting as to whether the work requiring the cover to be off the hole into which he stepped had been completed, and it was time for covering it.

2. An employer is only required to provide a place as reasonably safe as the proper carrying on of the work will reasonably permit.

Appeal from Circuit Court, Jackson County; J. V. C. Karnes, Special Judge.

Action by Clem Sinberg against the Falk Company. Judgment for plaintiff. Defendant appeals. Reversed.

Harkless, O'Grady & Crysler, for appellant. Ward & Hadley and Kimbrell & Kimbrell, for respondent.

BROADDUS, J.

The plaintiff seeks to recover damages for personal injuries alleged to have been received in consequence of defendant's negligence while in its employ. The answer was a general denial, that plaintiff's injuries were caused by his own negligence, and that he assumed the risk. The evidence in the case discloses the following state of facts: The Falk Company, a corporation of Milwaukee, Wis., the appellant herein, was on the 9th day of May, 1900, and prior thereto, engaged in the reconstruction of the double tracks of the Metropolitan Street Railway Company at the intersection of Eighth street and Grand avenue, Kansas City, Mo.; Eighth street extending east and west, and Grand avenue north and south. Said street railway was operated by means of an underground cable, and at the points where said tracks turn, "or curve," around from Eighth street into Grand avenue, the cable is held in place by pulleys of iron placed underneath the street surface of the tracks between the rails. This series of iron pulleys extends around the curves of each track for a distance of about 40 feet, and they revolve very rapidly when the cable is in motion. In the center of the tracks is an iron slot rail, through which the grip from the car extends down to the underground cable. The pulleys are covered by a series of metal plates about 16 inches wide, 20 inches long, and 1 inch thick, placed side by side, and extending from the outside rail to the center or slot rails of the tracks. The streets were paved with asphalt at this point, except over the pulleys at the curve, where the metal plates were so placed as to constitute a part of the street pavement, and persons would walk over them in passing along the streets. Appellant's work of reconstruction, in so far as these curves were concerned, consisted of shortening them, by forcing them over to the southeast, near to the sidewalk at the southeast corner of Eighth street and Grand avenue. Plaintiff, Clem Sinberg, was employed by defendant as a common laborer, and on the afternoon of May 8, 1900, he and other laborers were finishing up the work at the south curve under the immediate supervision and direction of appellant's foreman. They had moved the track over to the southeast, and it was nearly, if not quite, secured in place. The cable was running, the pulleys revolving, and the cars were passing over said track during the process of reconstruction as aforesaid. While they were finishing up the curve, plaintiff was ordered by the Falk Company's foreman to return at midnight to work on the night shift. When he returned at midnight he was directed by said foreman to saw an iron track rail of the north track on Eighth street at a point about 50 feet east of the east line of Grand avenue. He had almost severed said rail when said foreman commanded him to "hurry up" and "get a brace" to put under the nearly severed rail, so that an approaching car might safely pass over the track. The braces were on or near a pile of dirt south of the south curve, which plaintiff was engaged in finishing up the previous day. In order to reach said braces, by the most direct and convenient route, in order to obey the order of appellant's vice principal aforesaid, it was reasonably proper for plaintiff to pass along and over the metal plates covering the pulleys of the south curve. The metal plates had all been replaced, except one, and defendant's foreman and workmen and the street railway's inspector had been walking along and over said curve, and using the same for a regular pathway, for at least two hours before plaintiff returned to his work. They were so using it at the time of plaintiff's injury. An electric light was northeast of said curve, and one of defendant's foremen, Mr. Krebbs, was passing along, between it and the south curve, in such a position that his shadow fell across said south...