Boyet v. Davis

• Citation: 269 S.W. 413
• Decision Date: 06 March 1925
• Docket Number: No. 3604.,3604.
• Parties: BOYET v. DAVIS, Director General.
• Court: Court of Appeal of Missouri (US)

269 S.W. 413

BOYET v. DAVIS, Director General.

No. 3604.

Springfield Court of Appeals. Missouri.

March 6, 1925.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Joe Boyet against James C. Davis, Director General. Judgment for plaintiff, and defendant appeals. Reversed.

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

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

BRADLEY, J.

Plaintiff sued to recover for a rupture alleged to have been received while working as a section hand on the Frisco railroad on April 26, 1919. The cause was filed in Wayne county, but the venue was changed to Butler county, where a trial was had to a jury on January 11, 1924. Plaintiff obtained a judgment for $2,000, and defendant appealed.

The charges of negligence relied upon are (1) the failure to furnish a sufficient number of able-bodied, competent, and willing men to do with reasonable safety the work in which plaintiff was engaged at the time of his alleged injury, to wit, the removing from the railroad track a motor car used by the section crew; (2) the alleged negligence of defendant through the section foreman in directing the motor car to be removed under the circumstances; and (3) the alleged negligence of plaintiff's fellow servants in failing to use reasonable care to assist plaintiff in removing the motor car. The answer is a general denial, and a plea of assumption of risk. Also defendant alleged in its answer that the work in which plaintiff was engaged when injured was in furtherance of interstate commerce. The reply denied generally the new matter, but admitted that the work was in furtherance of interstate commerce, and the cause was tried as one under the federal Employers'. Liability Act (U. S. Comp. Stat. § 8657 et seq.)

Defendant assigns error on the refusal of the demurrer, and on the instructions.

At the time of the alleged injury plaintiff resided in Williamsville, Mo., and was a member of the section crew. The crew consisted of plaintiff, then about 64 years of age, Everett Secrest, Arthur Fudge, and the foreman, Bill Jones. Fudge had been on sick leave for about a month, and returned back to work the day of plaintiff's alleged injury, but was still afflicted with a boil under his arm. Secrest, according to plaintiff, was an individual who "had a habit of shirking his work in different ways. He would shirk on you if you were lifting a tie with him, for instance, a good big tie; he would always make the other fellow do the heavy lifting." On the morning of plaintiff's alleged injury the crew had gone out on the motor car about 4 miles northeast of Williamsville to the place of work, when they stopped, the tools or a part of them were unloaded, and the motor car removed from the track by lifting up the rear end and carrying its around until the front trucks dropped off the rails. In removing the motor car on the day in question, plaintiff said that "Secrest went to the left-hand corner, I went to the right-hand corner, and Mr. Fudge to the middle, and we swung to the north side." The foreman did not assist in removing the motor car from the tracks. The motor car weighed between 1.500 and 1,600 pounds and carried at the time about 300 pounds of junk iron and tools, and was about seven feet and six inches In length. At the place where the motor car was removed the spaces between the ties were filled with gravel up even with the ties, and the top of the rails was about four and a half inches above the top of the ties.

Plaintiff claims that he was ruptured by the weight thrown upon him when the end of the motor car was swung around to the north, causing the front trucks to drop from the rails. He described the manner of his injury thus:

"When the wheels dropped down the car ruptured me. The car made a sudden jar, sudden jerk, a sudden weight on me. It was when the car dropped down from the rails on the ties— that's when it caused me to be ruptured. I didn't notice what the other two men were doing at the time, but this sudden heavy weight gave me a sudden breakdown—a sudden giving away. I had hold of a little rod, a handle on the end of the car."

Defendant's demurrer is founded upon the contention that plaintiff as a matter of law assumed the risk. Under the federal Employers' Liability Act an employee entering upon a contract of employment assumes all the risks and dangers ordinarily incident to the employment, and also risks caused by the employer's negligence which are obvious and fully known to the employee and appreciated by him, or so plainly observable that he must be presumed to know them. But the employee is not, under the act, required to use even ordinary care in discovering dangerous defects,...