Allen v. Missouri Pac. Ry. Co.

• Decision Date: 11 April 1927
• Docket Number: No. 25172.,25172.
• Citation: 294 S.W. 80
• Parties: ALLEN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

294 S.W. 80

ALLEN v. MISSOURI PAC. RY. CO.

No. 25172.

Supreme Court of Missouri, Division No. 1.

April 11, 1927.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Action for personal injuries, brought by W. R. Allen against Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

James F. Green, of St. Louis, J. C. Sheppard, of Poplar Bluff, and M, U. Hayden, of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

LINDSAY, C.

This is an action for damages for personal injuries and the case comes to the writer upon reassignment. At the time he was injured, the plaintiff was one of a crew of section men working for defendant under the direction of a foreman. Using a wrench, he was engaged in turning and tightening the nut on a bolt which passed through the angle bar along a rail joint on defendant's line of railway, near Morley, in this state. The wrench suddenly broke, and the plaintiff fell backward between the rails, and received the injuries for which he sues. There are four men engaged at that kind of work, at that time; but the work was of an individual character, and each man used his own wrench —that is, the wrench he was accustomed to use when engaged in that form of work. The wrenches were of iron, and as originally made were about 18 inches in length. From the larger or lower end, which fitted about the nut, the wrench or handle portion of it tapered up to smaller size. Two of the wrenches had been extended in length by welding a piece of metal to the upper end. Two of them had been extended in length by slipping a piece of gas pipe down over the tapering end of the wrench.

The plaintiff was using a wrench of the latter kind, and had been using it, when engaged in that sort of work, for two or three months. On the one he was using, a piece of gas pipe about 3 feet in length had been slipped down over the tapering end or handle of the wrench for a distance of about 5 inches. The gas pipe did not break under the force exerted by the plaintiff, but the wrench broke near the point where it entered the gas pipe. On the other wrench the gas pipe extended down 12 or 14 inches over the tapering end of the wrench, or to within 5 or 6 inches of its larger or lower end, Upon this difference rests the negligence charged, it being the contention of the plaintiff that the increased leverage and power exerted by using the attached gas pipe as a handle made the wrench liable to break, and unsafe to use unless the gas pipe extended down to a point near the lower end of the wrench, and further that, in using wrenches with a piece of gas pipe so added, it had been the custom of defendant, and was necessary, to have the gas pipe extend down to within 4 or 6 inches of the lower end of the wrench, and that defendant was guilty of negligence in furnishing to plaintiff and requiring him to use a wrench with a piece of gas pipe extending down only 5 or 6 inches over the iron part of the wrench.

The amended petition described in detail the kind of wrench furnished the plaintiff, alleging that it was usual and customary for defendant to furnish wrenches having a gas pipe handle extending down to within 4 or 6 inches of the lower end of the wrench, and it was necessary so to have them in order that the gas pipe would not slip off or break the wrench; that defendant furnished the plaintiff with a wrench and gas pipe handle so constructed that said pipe would not slip down over the narrow end of the wrench more than 6 or 7 inches, and by reason thereof said wrench and gas pipe handle constituted a dangerous and improper appliance. The petition specified negligence in several particulars, but all are embraced in the character of the appliance furnished to plaintiff as above described, and as being unsafe, joined with allegations of failure of defendant to exercise ordinary care in furnishing and ordering plaintiff to use said unsafe appliance, and failure to warn him of the danger of its use, of which he was ignorant.

The answer, after a general denial, charged plaintiff with negligence contributing directly to his injuries, in that he carelessly failed to shove the gas pipe down over the end of the wrench a sufficient distance, to prevent the pipe from slipping off or breaking the wrench while being used as plaintiff was using it, and that he failed to assume such a position while using it that he would not fall backward, in the event the pipe slipped off or the wrench handle broke. The answer also pleaded that the wrench and gas pipe were a simple tool, and that in accepting his employment plaintiff assumed the risk of all injuries incidental to its use.

The plaintiff filed a reply, in which he denied that he failed to shove the gas pipe down over the end of the wrench, to prevent the gas pipe from slipping off, and denied that the gas pipe did slip off, and denied that his injuries were caused by the gas pipe slipping off the end of the wrench, and averred that the appliance being used by him was one appliance, mad a of two parts, the gas pipe and the wrench, fastened together, and that in the shape and form it was furnished to him it was not reasonably safe, and because of its unsafe condition, while he was using it as alleged in his petition, the said appliance broke and suddenly came apart, and his injuries were caused thereby, and not by any negligent act of himself contributing thereto. The Plaintiff had a verdict for $15,000.

On behalf of defendant there are several assignments of error, but the point mainly urged is that the judgment should be reversed outright. It is asserted that the evidence wholly fails to establish that the wrench was defective, or that defendant knew, or by the exercise of ordinary care could have known or reasonably anticipated, it was defective, and likely to break and cause the alleged injury. As reaching the same final result, it is also argued that the evidence shows that the plaintiff was as well informed concerning the condition of the wrench as was defendant; that he had been using the wrench for two or three months, and was well acquainted with its condition, saw nothing defective with it, and therefore assumed the risk of injury from its use. In connection with this last contention it is said that the proof showed the track being repaired was one being used by defendant in interstate commerce; that this court must take judicial notice of the fact that defendant was engaged in interstate commerce, and therefore the question of plaintiff's assumption of the risk is to be determined under the federal Employers' Liability Act (U. S. Comp. St. §§ 8G57-8665), as construed by the federal Supreme Court, and that under that law, the wrench being a simple appliance, the plaintiff assumed the risk of injury from its use, even though it was not reasonably safe, and even though defendant was negligent.

Taking these in somewhat inverse order, it is seen that in the testimony of one of defendant's witnesses there is the statement that defendant "has a line in Arkansas. Illinois, Kansas, Oklahoma, and Colorado." The case was not tried in the lower court upon the theory that it was governed by the federal statute. It is not urged that the question was raised by the pleadings or otherwise, except or unless by the foregoing statement, in evidence without objection.

The like question was before this court in Taber v. Mo. Pac. R. R., 186 S. W. 688. That was an action brought by a guardian of minors, under the Missouri statute, for the death of their father, an employee of defendant. There was no allegation in the pleadings that defendant and deceased were engaged in interstate commerce. There was, however, some evidence upon the trial tending strongly to show that they were so engaged. Upon appeal, it was sought to have the case considered under the provisions of the federal Employers' Liability Act, but this court refused to do so upon the ground that the answer did not set this up as new matter, and the question had not been submitted to the trial court for determination. It was said that the defendant had the opportunity, if it desired, to conform its answer to the evidence, and, not having done so, but having submitted the case as if the issues were governed by the state law, it could not, on appeal, have the case determined in accordance with the provisions of the federal law, and upon a different theory. The ease went to the Supreme Court of the United States (Mo. Pac. R. R. v. Taber, 244 U. S. 200, 37 S. Ct. 522, 61 L. Bd. 1082), where the derision of this court was affirmed. That court, disposing of the issues, said (loc. cit. 202 [37 S. Ct. 5231):

"The original action was based upon a state statute; the answer did not set up or rely upon the federal act; the trial court's attention was not called thereto; and, although urged to hold liability depended upon it, the Supreme Court declined to pass upon that point, because not presented to the trial court. This ruling seems in entire accord with both state statutes and established practice. Mo. Rev. Stat. 1909, § 2081; St. Louis Nat. Bank v. Flanagan, 129 Mo. 178, 31 S. W. 773; Freeland v. Williamson, 220 Mo. 217, 119 S. W. 560."

Under similar circumstances that court, in Atlantic Coast Line R. R. Co. v. Mims, 242 U. S. 532, 37 S. Ct. 188, 61 L. Ed. 476, made a like ruling, holding that a defendant, desiring to claim the benefits of the federal Employers' Liability Act, must claim the same by a pleading, or in a direct way in the trial court of the state, when the rules and practice of the state court so required. In Ford v. Chicago, Rock Island R. R. Co., 280 Mo. 206, 217 S. W. 294, the decision in the Taber Case was cited with approval, and it was held in effect that a receiver, a codefendant, in a suit setting up a common law liability, had waived his immunity under the federal statute, there being no suggestion...