Baker v. Barber Asphalt Pav. Co.

• Decision Date: 16 January 1899
• Docket Number: 2,291.
• Citation: 92 F. 117
• Parties: BAKER v. BARBER ASPHALT PAV. CO.
• Court: U.S. District Court — Western District of Missouri

92 F. 117

BAKER v. BARBER ASPHALT PAV. CO.

No. 2,291.

United States Circuit Court, W.D. Missouri, Western Division.

January 16, 1899

Meservey Pierce & German and Wm. E. Higgins, for plaintiff.

Lathrop Morrow, Fox & Moore, for defendant.

PHILIPS District Judge.

This is an action by the surviving wife of Wells H. Baker to recover damages for the death of her husband, occasioned by the alleged negligent act of the defendant company. The action grows out of the following state of facts, briefly stated The defendant company, engaged in the construction of asphalt pavements at Kansas City, maintained a storage room for material used in its business. This storage building was surrounded by a high board fence, and access to the platform of this building, from which the materials were loaded into the wagons for conveyance therefrom, was through a gateway about 30 feet wide. The wagons reached said platform by being backed, so that, when the rear end of the wagon struck against the platform, the heads of the horses were near to this gateway. The posts to this gateway were bound together at the top with a beam, under which said wagons had to pass in backing into the platform, and passing therefrom after being loaded. This beam is alleged in the petition to have been at the time of the accident 7 feet 9 inches from the ground; so that, when a wagon was loaded in the customary way, there was not left room for the driver to sit upon the front end of the wagon, and pass out under this beam, without stooping considerably. The evidence showed, in a general way that, after said Wells H. Baker had loaded his wagon, he was either in a position on the front end of the wagon, or was standing on the side thereof, when his team suddenly started, and passed through the gate; and in passing under said beam, in stooping, he was struck near the back of the neck, and received injury from which he died.

The evidence elicited from plaintiff's witnesses disclosed the fact that the team in question belonged to the deceased, as also the running gear of the wagon, and that the wagon bed was furnished by the defendant; and the further fact that the deceased, for a number of years previous to this accident, had been hauling material for the defendant from this platform, and had been passing in and out under said crossbeam, and was perfectly familiar with its position, and the difficulty and danger, if any, of passing thereunder on his wagon. He had sole control and management of the horses and wagon. On this state of the evidence, the jury, under direction of the court, returned a verdict for the defendant.

The plaintiff has filed a motion for new trial, on the principal ground that the court erred in holding that, as the deceased was perfectly familiar with the place where he was assigned to work, and the position of the crossbeam and its height from the ground were quite obvious and well known to him, and he continued in the service of the defendant to work in and about said place without protest, he assumed the risk incident to any defective construction of said beam, for the reason that no such fact was pleaded in the answer as a specific defense to the plaintiff's cause of action; in other words, the contention of plaintiff's counsel is that this fact was not within the issues under the pleadings in the case. The answer tendered the general issue, and also a plea of contributory negligence, and further pleaded that the deceased negligently failed to observe the crossbar, and to take precautions to prevent being struck by it; that he negligently loaded his wagon in an improper manner, negligently failed to properly control his horses or heed the warnings given him, and assumed an improper position upon the wagon immediately preceding the accident.

There has perhaps been no better or more succinct statement of what is admissible in evidence under the general issue than the following exposition, by Judge Dryden, in Greenway v. James, 34 Mo. 328:

'Where a cause of action which once existed has been determined by some matter which subsequently transpired, such new matter must, to comply with the statute, he specially pleaded; but, where the cause of action alleged never existed, the appropriate defense under the law is a general denial of the material allegations of the petition; and such facts as tend to disprove the controverted allegations are pertinent to the issue.'

The very groundwork of the plaintiff's cause of action was the negligence of the defendant, as master, in failing to furnish the deceased a reasonably safe place in which to perform the work in which he was engaged. This obligation on the part of the master is not, however, so absolute and unconditional that he is made responsible for any injury occasioned to an employe by imperfect construction or arrangement of the place in which the employe is assigned to work. As the master is ordinarily permitted to conduct his business in his own way, and to apply such appliances and structures as he may deem essential for his use, he is only liable to his servant for an injury when it results by reason of the neglect of the master to furnish the servant reasonably safe appliances with which to work, and a reasonably safe place in which to perform it, where the servant himself is not aware at the time of the injury of the imperfection of the structure or the danger incident to the place. There is no rule of law better settled than that where the structure or place which caused the injury is perfectly obvious to the eye, and well known to the servant, both before and at the time of the accident, he himself assumes the risk of working under such conditions, and the master is excused from any liability therefor to the servant.

As said by the court in Coal Co. v. Reid, 29 C.C.A. 475, 85 F. 917:

'Where the servant possesses actual knowledge of the risk, obtained both before and during the engagement of service, he is not merely required to exercise greater vigilance to avoid the danger, but he assumes the risk. Pierce v. Clavin, 27 C.C.A. 227, 82 F. 550.'

In Tuttle v. Railway Co., 122 U.S. 195, 7 Sup.Ct. 1166, the supreme court approved the following announcement of the rule by Judge Cooley:

'The rule is now well settled that, in general, when a servant, in the execution of his master's business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself. The reason most generally assigned for this rule is that the servant, when he engages in the employment, does so in the view of all the incidental hazards, and

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