Bohn v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 09 November 1891
• Court: Missouri Supreme Court
• Parties: BOHN v. CHICAGO, R. I. & P. RY. CO.

17 S.W. 580

106 Mo. 429

BOHN v. CHICAGO, R. I. & P. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 9, 1891.

INJURY TO SERVANT — DEFECTIVE APPLIANCES.

Plaintiff, while engaged with other workmen for defendant in raising a turn-table, was injured by the breaking of a timber used as a lever. The evidence showed that the timber which caused the injury was one of a lot of bridge timbers, and was such as is ordinarily used for like purposes by persons engaged in the same kind of business, and that it was new, sound, and suitable for all purposes for which it was used. Held, that no negligence on the part of defendant in furnishing unsuitable appliances was shown.

Appeal from circuit court, Clinton county; JAMES M. SANDUSKY, Judge.

Action by George Bohn against the Chicago, Rock Island & Pacific Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

M. A. Low, W. F. Evans, and T. E. Turney, for appellant. Wm. Henry and Joel A. Trice, for respondent.

BLACK, J.

A prize-pole broke and fell upon the plaintiff, inflicting the injuries of which he complains, while he and 15 or 20 laborers were engaged in raising a broken turn-table upon which there was an engine and tender. It is alleged in the petition that defendant "negligently and carelessly furnished for the use of such employes, including the plaintiff, unsafe and improper timbers, prize-poles, and means of leverage for use in so raising and replacing such track railing and engine, in consequence of which * * * such prize-pole broke, gave way, and fell upon plaintiff," injuring him so that he became a cripple for life. The answer, besides the general denial, set up negligence on the part of the plaintiff in this: that he improperly took a position immediately under the pole. The evidence discloses these facts: The work was performed under the orders of a foreman. The plaintiff and other laborers had succeeded in raising one side of the turn-table by the use of track levers, and at the time of the accident were engaged in raising the other side. The foreman directed the men to get a stick of timber from a pile of like sawed bridge timbers. He did not direct them to get any particular piece, but some of the laborers picked out the one in question. The plaintiff assisted in carrying it to the place where it was used. While some of the men were putting it in place the plaintiff was engaged at other work. After one end had been placed under the table, and 15 or 16 men had placed themselves in position to bear down upon it, the foreman directed the plaintiff to assist; and he took hold of a hand-rope which had been thrown over the upper end of the lever. That was the only place where he could take a position so as to lend a helping hand. As the men were bearing and pulling down, the lever broke near the fulcrum, and fell upon the plaintiff. There is evidence to the effect that the rope was tied at the lower ends, thus forming a loop. One witness testified that the foreman said, "Some of you men get into this rope and stand in it;" that plaintiff then placed himself in the loop, and was standing in...