Bootman v. Lusk

• Decision Date: 16 December 1916
• Docket Number: No. 1788.,1788.
• Parties: BOOTMAN v. LUSK et al.
• Court: Missouri Court of Appeals

190 S.W. 414

BOOTMAN v. LUSK et al.

No. 1788.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Rehearing Denied January 1, 1917.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by F. M. Bootman against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed.

W. F. Evans, of St. Louis, Neville & Gorman, of Springfield, S. E. Bronson, of Ozark, W. P. Sullivan, of Billings, and Mann, Todd & Mann, of Springfield, for appellants. Hamlin, Collins & Hamlin, of Springfield, for respondent.

STURGIS, J.

The plaintiff was injured while working for defendant as a car repairer in the repair yards at Springfield, Mo. He claims to have ruptured an artery in his leg which necessitated an amputation of the same about a month later. The injury is alleged to have been caused while plaintiff was doing repair work on the trucks of a freight car, which trucks had been moved from under the car for that purpose. The attached photograph will explain the manner of his being injured:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff was attempting to remove the column bolt A. To do so he had driven the bolt up an inch or so, and then used a claw bar weighing 25 or 30 pounds, such as section men use to pull spikes, to draw the bolt still higher by inserting the claws of this bar under the head of the bolt at A and pulling down upon it as a lever. The point A is some 2½ feet from the ground, and, to get a better leverage, the plaintiff stepped up and stood on the journal box B. He then pulled down on the claw bar, which slipped from the head of the bolt causing him to lose his balance. To save himself from falling he stepped or jumped from the journal box on which he was standing, and in lighting the ball of his right foot came down on a tie some 6 inches above the level of the ground, and his weight, coming on this, forced his heel downward. The plaintiff described what happened thus:

"Now these column bolts go down through the queen post with a nut on the bottom. This particular bolt that I took out was a short bolt. It was all right, only it was short, and didn't have a full nut. Some car repairer put it in and just stuck a nut on it on the bottom. It did not extend over half an inch beyond the bottom of the post. That is the reason I had to take it out. I unscrewed the nut and took a toe jack and jacked it up to get all the space I could get so as to get a claw bar under the top, and after I jacked it up I picked up a claw bar and put it under the end. * * * Now, when I went to pull this column bolt that set over on that corner (indicating) I stepped my foot up on this box and brought myself up so I could reach over to get under that bolt, and I took hold of the bar and jerked back, and the bar slipped. If you understand, here is the box, and there the bolt, and here is the rail underneath them, and here is the column bolts and back here two box bolts (indicating). Now, I took out that first column bolt and jacked it up and drew this clear. That gave me about the distance to step on this box, and when I jerked down on this bolt the bar slipped and I went down on my right foot. Q. You pulled down on that bar? A. I jerked down. Q. What position was your body in? A. I was standing right up there (indicating). I jerked the bar toward me to the side, and as I made that jerk the bar slipped, and I stepped down with this foot, and when I stepped down I hit the edge of this tie with the ball of my foot, and, it not being ballasted up level, my heel went down to the ground. I fell down to the ground and let go of my bar and felt a stinging sensation about halfway between the ankle and the knee in the calf of my leg. It felt like a right smart sprain, kind of a tingling sensation. I got up and rubbed it a few minutes, and it felt a little easier, and I went on to work. It made me feel a little sick. This happened along maybe 2 or 3 o'clock. This truck would be two feet above the rail. This box upon which I was standing was somewhere near there. I couldn't tell you how high the rail was above the ties. It was an ordinary rail. The ties were six inches thick. I fell from the box onto a tie and caught the ball of my foot on the tie. I worked all the rest of that day."

The grounds of defendant's negligence alleged in the petition and submitted by the instructions are: (1) That defendant did not furnish plaintiff a safe tool with which to do his work, in that the claw bar on the edges and points was rounded and smooth to such an extent that it would not hold when inserted under the head of the bolt, but would, as it did, slip and cause plaintiff to fall; (2) that defendant did not furnish plaintiff a safe place to work, in that the railroad track where the defective car was placed to be repaired was a new, and what is termed a skeleton, track, the ties being laid on the ground without any ballast or filling in between the same, so that when plaintiff fell or stepped from the truck in question his foot landed on the exposed end of the tie.

The defendant makes only one assignment of error here, that a demurrer to the evidence should have been sustained. The evidence abundantly supports the facts as to both alleged grounds of negligence, and same were hardly controverted at the trial. As to the conceded fact that the track at which defendant was working was a skeleton one with the ties exposed instead of being covered with ballast, the defendant's contention is that such condition of its track is merely one of the incidents attending plaintiff's fall from the truck and the consequent injury, and is not the efficient or proximate cause of such injury. It is certain that the condition of this track and tie had nothing to do with causing plaintiff to fall. This condition rather contributed to the amount than to the cause of plaintiff's injury. If a carpenter at work on a house should fall because of the breaking of the platform on which he is at work, and lights on a pile of rough stone instead of grass or mud, the stones would inflict the injury, but the cause, so far as negligence is concerned, is the breaking of the platform, and if that is due to the master's negligence there is liability, but not so if due to the servant's own negligence. We considered a somewhat similar proposition in Schaller v. Lusk, 184 S. W. 1179, wherein a workman fell from an engine, and in trying to save himself he grasped a loose pipe (negligently left loose so plaintiff claimed), which then fell with and on him to the ground. We there said:

"The loose branch pipe was not the proximate cause of plaintiff's injury, but it was the catching of his foot that started him on his fall. The thing that sets in motion a train of events that in their natural sequence ought to be expected to produce the result of which complaint is made is the proximate cause (Holwerson v. St. Louis & Suburban Ry., 157 Mo. 216, 231, 57 S. W. 770, 50 L. R. A. 850, and Glenn v. Metropolitan Street Ry. Co., 167 Mo. App. 109, 117, 150 S. W. 1029) and that thing must, of course, be characterized by the negligence of the party against whom complaint is made. It was not the duty of defendants to protect plaintiff against...