Boyet v. Davis

• Decision Date: 06 March 1925
• Parties: JOE BOYET, Respondent v. JAMES C. DAVIS, Director General, Appellant.
• Court: Missouri Court of Appeals

269 S.W. 413

217 Mo.App. 513

JOE BOYET, Respondent v. JAMES C. DAVIS, Director General, Appellant.

Court of Appeals of Missouri, Springfield

March 6, 1925

Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.

REVERSED.

Judgment reversed.

W. F Evans, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

(1) The court erred in refusing to give the defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case. (a) The answer of the defendant affirmatively pleads that the plaintiff at the time of his injury was employed in interstate commerce and the reply filed by the plaintiff specifically admits that he was so employed. So it is manifest in this case that the trial court was in error in trying this case and submitting it to the jury upon the theory that the plaintiff could not assume the risk occasioned by the alleged negligence of his employer. In other words, the trial court followed the Missouri rule on this question, whereas it should have followed the Federal rule, since the case is one arising under the Federal Employer's Liability Act. Pryor v. Williams, 254 U.S. 43, 65 L.Ed. 120; Chicago, R. I. & P. R. Co. v. Ward, 252 U.S. 18, 64 L.Ed. 430; Seaboard Air Line Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062; Jacobs v. Southern R. Co. , 241 U.S. 229, 60 L.Ed. 970; Quigley v. Hines, 235 S.W. 1050; See v. Railway, 228 S.W. 518; Walker v. Railway, 243 S.W. 261. (b) The plaintiff's own evidence concedes that he had accurate and superior knowledge of all the matters alleged to have been negligent on the part of defendant; that is, the plaintiff well knew and appreciated the weight of the motor car in question, of the number of men required to handle same, of the alleged physical defects of Fudge and of the shirking proclivities of Secrest. Plaintiff had had thirty-five years experience as a section hand, had been a foreman of a section crew for eighteen years, and had lifted and handled this motor car in question with the same two men for four months. He therefore had accurate and complete knowledge of all the matters complained of and he also testifies that he well knew that three men could not safely handle this car and he also knew that it was dangerous to undertake to handle it with Fudge and Secrest as his helpers, although he never at any time made any complaint to the foreman of any of these matters. He therefore assumed the risk and danger of his employment and he cannot recover. Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 57 L.Ed. 1062; Boldt v. Ry. Co., 245 U.S. 445, 62 L.Ed. 385; Chicago R. I. & P. R. Co. v. Ward, 252 U.S. 18, 64 L.Ed. 430; Walker v. Railway, 243 S.W. 261; See v. Railroad, 228 S.W. 518. And the Employer's Liability Act places a co-employee's negligence, when it is the ground of action, in the same relation as that of the employer upon the matter of assumption of risk. Chicago R. I. & P. R. Co. v. Ward, 252 U.S. 18, 64 L.Ed. 430; Ches. & Ohio R. Co. v. DeAtley, 241 U.S. 313; Ches. & O. R. Co. v. Proffitt, 241 U.S. 462, 60 L.Ed. 1102; Erie R. Co. v. Purucker, 244 U.S. 320, 61 L.Ed. 1166. (c) The above cases hold that when the employee knows of the defect in the appliances and appreciates the risk that is attributable to such defect, then if he continues in the employment without objection or without obtaining from the employer an assurance that the defect will be remedied, he assumes the risk, even though it arises out of the master's breach of duty. It is further held that when the work requires men to do it, the men engaged therein are classed as appliances. Haviland v. Railroad, 172 Mo. 106; Thorpe v. Railroad, 89 Mo. 663; Wood on Railroads, p. 1758. (d) We go further in this case and assert that the plaintiff could not recover even under the Missouri rule, unaffected by a Federal statute. Haviland v. Railroad, 172 Mo. 106; Epperson v. Cable Co., 155 Mo. 346; Leitner v. Grieb, 104 Mo.App. 173; Pulley v. Oil Co., 136 Mo.App. 172; Slagel v. Lbr. Co., 138 Mo.App. 432; Harbacek v. Iron Works Co., 229 S.W. 803; Thomas v. Cement Co., 245 S.W. 575; Emery v. Railroad, 246 S.W. 335; Ryan v. Lea, 249 S.W. 685. (e) Under the authorities last cited above, the plaintiff, in continuing in the work under the circumstances and with the full and complete knowledge he testifies he had, not only assumed the risks involved, but under the Missouri rule he was guilty of such contributory negligence as a matter of law as will preclude a recovery. Since this contributory negligence was shown by his own testimony it was not necessary to plead it. Mueller v. Puring Co., 254 S.W. 722; Boesel v. Wells-Fargo & Co., 260 Mo. 472; Collett v. Kuhlman, 243 Mo. 591; Schlereth v. Railroad, 96 Mo. 514. (2) The court erred in refusing to give to the jury each and all of the following instructions offered on behalf of the defendant, to-wit: Nos. C, D, E, F, 1, 2, 3, 4, 5 and 6. By the trial court's refusal of each and all of the foregoing instructions offered on behalf of the defendant, it is made clear that the trial court misconceived the law applicable to this case. In one form or another the defendant sought in each of the foregoing instructions to submit to the jury the defendant's pleaded defense of assumption of risk. We think each and all of the instructions should have been given, especially those not peremptory in their character. Said instructions Nos. 5 and 6 should at least have been given, if the plaintiff was entitled to go to a jury at all. The court gave no other instructions on behalf of the defendant submitting the question of assumed risk. See authorities, supra.

Henson & Woody, and Sam M. Philips, all of Poplar Bluff, for respondent.

(1) That the facts in this case convict the defendant of negligence, see the following cases in point: Levecke v Curtis Mfg. Co., 193 S.W. 985, 197 Mo.App. 262; Meily v. St. Louis, etc., Ry. Co., 114 S.W. 1013, 215 Mo. 567; McMullen v. Railroad, 60 Mo.App. 231; Tull v. Railroad, 216 S.W. 572; Fogus v. Railroad, 50 Mo.App. 250; Bowman v. K. C. Electric Light Co., 213 S.W. 161; Smith v. Greer, 257 S.W. 829; Heady v. Wright Tie Co., 262 S.W. 447. (2) The plaintiff in this case did not, as a matter of law assume the risk of obeying the negligent order given him by his master. Risk not assumed where the master ordered the servant to go in front of an approaching train and remove rocks from the track, see, Stephens v. Hannibal & St. Joe Ry. Co., 96 Mo. 207. See also the following cases which hold that the fact that plaintiff knew of the conditions causing the danger and realized the danger, will not, as a matter of law, defeat his recovery. Loftis v. Kansas City, 156 Mo.App. 683, 137 S.W. 993; Morris v. Frisco, 168 S.W. 323, 184 Mo.App. 106; Canterbury v. Kansas City, 149 Mo.App. 502, 131 S.W. 120; Howard v. New Madrid, 148 Mo.App. 57, 127 S.W. 630; Coffey v. Carthage, 186 Mo. 573; Herbling v. Warrensburg, 204 Mo. 604, 103 S.W. 36; Diamond v. Kansas City, 120 Mo.App. 185, 96 S.W. 492; Lueking v. Sedalia, 167 S.W. 1152, 180 Mo. 203; Perette v. City, 162 Mo. 238, 62 S.W. 448; Boland v. Kansas City, 32 Mo.App. 8; Maus v. Springfield, 101 Mo. 613; Perrigo v. City, 185 Mo. 274; Lower v. Sedalia, 74 Mo.App. 431. The undisputed evidence in this case is that when the motor car in question had reached the point that plaintiff was injured, that defendant's foreman ordered the plaintiff and his co-laborers to take the car off the track and that plaintiff was injured in attempting to obey the command of his master. The plaintiff did not assume the risk of obeying this negligent command and doing the work in question, unless the danger was fully appreciated and it was so glaring that no person of ordinary prudence would consent to encounter it. A servant acting under the commands or threats of his master does not assume the risk incident to the act commanded, unless the danger incurred is fully appreciated, and is such that no person of ordinary prudence would consent to encounter it. 26 Cyc. 1221, and cases cited too numerous to be set out herein. The mere fact that the servant knows that there is some danger will not defeat his right to recover (on the ground of assumption of risk), if in obeying, he is acting with ordinary care under the circumstances. 26 Cyc. 1222-23, footnote, 99 and cases cited. The above rules apply as well when the risk is without, as when it is within the scope of the servant's employment. 26 Cyc. 1223, and cases cited. Plaintiff, as a matter of law, did not assume the risk of his injury in obeying the command of his master. We do not believe that the court should say as a matter of law, that under the facts in this case that the danger of obeying the command given to him was so glaring and imminent that a reasonably prudent person would not have obeyed. Unless the court can so hold, as a matter of law, it cannot say, as a matter of law, that plaintiff assumed the risk of obeying the command. At this point we desire to call the attention of the court that there is a difference in the law relating to assumption of risk and contributory negligence, where the servant is obeying the command of his master immediately after the command and in his presence, than what the law is relative to assumption of risk where the servant is carrying out the usual and ordinary duties of his occupation. In the case of commands, the law is that the servant does not assume the risk unless the doing of the work commanded is so glaringly dangerous that a reasonably prudent man would not undertake it. See authorities cited, supra; Humphreys v. Lusk, 196 S.W. 53, 196 Mo.App. 442; Henderson v. Wilson Stove, etc., Co., 197 S.W. 177; Dodge v. Mfg. Coal & Coke Co., 115 Mo.App. 501; Flynn v. Railroad, 78 Mo. 195. The fact that a...