84 S.W. 66 (Mo. 1904), Mathis v. Kansas City Stock Yards Company

Citation:84 S.W. 66, 185 Mo. 434
Opinion Judge:FOX, J.
Attorney:Pratt, Dana & Black for appellant. Frank P. Walsh and E. R. Morrison for respondent.
Judge Panel:FOX, J. Robinson, C. J., Gantt and Burgess, JJ., concur; Marshall, Brace and Valliant, JJ., dissent. Robinson, C. J., Gantt and Burgess, JJ., concur; Marshall, Brace and Valliant, JJ., dissent. MARSHALL
Case Date:December 24, 1904
Court:Supreme Court of Missouri

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84 S.W. 66 (Mo. 1904)

185 Mo. 434




Supreme Court of Missouri

December 24, 1904

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.


Pratt, Dana & Black for appellant.

(1) Plaintiff failed to make out a case of injury due to actionable negligence on the part of defendant, and therefore its requests, made at the close of his case, and at the close of all the testimony, that a verdict be directed in its favor, should have been granted. (a) Even if the things alleged constituted defects in the plank, yet they were patent to any observer, and the plaintiff must have known of them, and was chargeable with such knowledge if he did not actually know it. Wood's Master and Serv., secs. 382, 419; 2 Thompson on Neg., sec. 48; Railroad v. Wagner, 33 Kan. 666; Breen v. Coop. Co., 50 Mo.App. 202; Covey v. Railroad, 86 Mo. 635; O'Malley v. Railroad, 113 Mo. 319; Murray v. Railroad, 101 Mo. 236. (b) Plaintiff must have proved affirmatively that defendant's furnishing the plank or allowing its use in the way in which plaintiff used it was a failure on its part to discharge some duty which it owed him, and that such failure was the proximate cause of his injury. Gurley v. Railroad, 104 Mo. 223; Roddy v. Railroad, Id. 244; Patterson's Ry. Accdt. Law, p. 7; Harlan v. Railroad, 65 Mo. 22; Hudson v. Railroad, 101 Mo. 13; Schmitt v. Railroad, 160 Mo. 43; Webb's Pollock on Torts, p. 545; Wood's Master and Servant, sec. 408. (c) Defendant's duty did not require it to furnish any particular kind of appliances, nor the safest nor the most suitable. Grattis v. Railroad, 153 Mo. 404; Friel v. Railroad, 115 Mo. 503; Bohn v. Railroad, 106 Mo. 429; Cothron v. Packing Co. (Mo. App.), 73 S.W. 279; Bradley v. Railroad, 138 Mo. 302; Brown v. Lumber Co., 65 Mo.App. 162. (d) The fact that plaintiff fell and was hurt, or that the plank tipped and caused his fall (if it was a fact) did not overcome said presumption nor prove a failure by defendant in doing its duty to plaintiff. Yarnell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. 119. (e) Plaintiff assumed the risk of using the plank because if, as he claims, it was a defective or unsuitable appliance in the respects charged in his petition, yet those alleged defects were obvious to him, he did not complain of them, and there was no promise or assurance given by defendant with reference to them. Wood's Master and Serv., sec. 382; Roberts v. Tel. Co., 166 Mo. 370; Nugent v. Milling Co., 131 Mo. 245; Steinhauser v. Spraul, 127 Mo. 562; Beach on Cont. Neg. (2 Ed.), sec. 359; Junior v. Light Co., 127 Mo. 83; Bradley v. Railroad, 138 Mo. 302. (2) The release executed by plaintiff was a bar to any right of action he might have had, and for that reason defendant should have had a verdict in its favor. Hazard v. Griswald, 21 F. 178; Wood v. Gordon, 18 N.Y.S. 111; Wallace v. Railroad, 67 Ia. 547, 25 N.W. 772; Och v. Railroad, 130 Mo. 52; Nicol v. Young, 68 Mo.App. 453.

Frank P. Walsh and E. R. Morrison for respondent.

(1) (a) The evidence clearly shows that defendant was guilty of negligence in the respects charged in the petition and the demurrer to the evidence was properly overruled. Doyle v. Trust Co., 140 Mo. 1; Huhn v. Railroad, 92 Mo. 440; Pauck v. St. L. D. B. Co., 159 Mo. 467; Murphy v. Railroad, 115 Mo. 118; Settle v. Railroad, 127 Mo. 343; Wendler v. People's H. F. Co., 163 Mo. 527. (b) The master's duty is to exercise reasonable care to provide as safe a place to perform the service as the character of the work done will permit. Curtis v. McNair, 173 Mo. 270; Bradley v. Railroad, 138 Mo. 302; Mather v. Rillston, 156 U.S. 391; Blanton v. Dold, 109 Mo. 75. (2) Where it is shown that the master has negligently failed in the performance of a personal duty, the servant never assumes the risk of such negligence. 1 Bailey's Pers. Inj., sec. 469; Soeder v. Railroad, 100 Mo. 673; Devlin v. Railroad, 87 Mo. 545; Keegan v. Kavanaugh, 62 Mo. 232. (3) The evidence shows a wrongful and fraudulent procurement of the release by the agents of appellant, and same is null and void. Och v. Trust Co., 130 Mo. 50; Vautrain v. Railroad, 78 Mo. 44, affirming 8 Mo.App. 538; Goodson v. Nat. Mas. Assn., 91 Mo.App. 351. The payment of $ 70 was voluntarily made by appellant and delivered to plaintiff and under the law was a gift and hence no consideration for signing the release. Meyer v. Koehruny, 129 Mo. 25; Blatz v. Lester, 54 Mo.App. 285; Riley v. Kershaw, 52 Mo. 224; Cunningham v. Union Cas. & S. Co., 82 Mo.App. 612.

FOX, J. Robinson, C. J., Gantt and Burgess, JJ., concur; Marshall, Brace and Valliant, JJ., dissent.


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[185 Mo. 438] In Banc


This cause was transferred to Court In Banc from Division No. 1 of this court. The opinion in Division No. 1, by the learned and esteemed judge, fairly states the facts in this cause, and with his permission the same will be adopted. It is as follows:

"The plaintiff recovered a judgment for five thousand dollars damages for personal injuries, sustained by him on August 29, 1899, in consequence of alleged negligence of the defendant in not furnishing him a safe place and safe appliances for doing his work as a servant of the defendant. The defendant appeals.

"The plaintiff was employed by the defendant as second or night engineer for the defendant. The petition charged that it was a part of the plaintiff's duty to adjust certain machinery and to turn a certain governor that regulated two certain steam pumps, which governor was located at a certain height above the floor, and that in order to reach the governor, the defendant provided a narrow pine board from eight to twelve inches in width, seven-eighths of an inch thick, with its ends resting upon the tops of two steam chests, connected with the engines and pumping works of the defendant, and that while plaintiff was engrossed in his said duty, the board slipped and the plaintiff fell and was injured.

[185 Mo. 439] "The petition charged three specific acts of negligence, to-wit: First, the heads or tops of the chests were dirty and greasy, etc., in consequence of which the plank slipped; second, that the board was insufficient in width, size, strength and weight to afford plaintiff a reasonably safe place and secure footing; third, that the board was loose and unfastened to its supports and was liable to slip and spring on account thereof from its proper position.

"Upon the trial, the court, by instruction, withdrew the first charge of negligence from the jury. So that only the second and third charges are material here.

"The answer is a general denial, a plea of contributory negligence, a plea of assumption of risk, and a plea of release.

"The reply denies the affirmative pleas, and as to the release pleads that it was obtained by fraud.

"The case made is this:

"The defendant has on its premises and operates two Worthington pumps, placed side by side, some twelve or fifteen feet long and about five to six feet apart. Each pump has on top of it two steam chests, each about eight inches wide and about twelve inches long. The steam that operates the pumps is supplied by a pipe running down about midway between the pumps. About four feet above the level of the steam chests a pipe runs from said down pipe to each of the two pumps. Each of said two last named pipes has a throttle, so that steam can be shut off from either or both of the pumps. Above where said two pipes leave the main supply pipe, there is a governor, which is an appliance for regulating the supply of steam, and which is operated by two brass wheels, one of which is held tight in one hand while the other is turned by the other hand. This regulator is placed at a height, varying according to the several witnesses, from eight and a half to twelve and a half feet above the level of the floor. [185 Mo. 440] The tops of the steam chests were four to four and a half feet above the level of the floor. The defendant contends that the governor was four and a half feet above the top of the steam chests, and, therefore, the governor was eight and one-half feet above the level of the floor, while the plaintiff contends that the bottom of the governor was eight and a half feet above the level of the floor, the brass wheels which operated the governor were two feet above his head, which he says would make the wheels twelve feet six inches above the floor, and eight feet six inches above the tops of the steam chests. This difference, however, is not decisive of the case and so need not be settled here. The tops of the steam chests were not smooth, but had the name of the manufacturer on them in raised letters and also had nuts and bolts projecting above them about an inch and an eighth in height.

"L. C. Chapman was the chief engineer and plaintiff's superior officer. G. H. Harper was the first engineer, and ran the pumps during the day. The plaintiff was the second engineer and ran the pumps during the night. The plaintiff had had experience as a mechanic, a stationary engineer, a locomotive engineer, a fireman, a blacksmith helper and an engine hostler. He had been in the employ of the defendant for nearly three years, first as a fireman, and from March or April, prior to the accident, which occurred on August 29, 1899, he was night engineer.

"The governor was too high above the floor for a man to operate while standing on the floor. The defendant contends that to reach the wheels of the governor it had provided two safe methods, to-wit, a ladder, which could be rested against the

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supply pipe above the governor, and a plank which could be rested upon the tops of the steam chests upon the two pumps. The plaintiff and his...

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