Bradley v. Chicago, Milwaukee & St. Paul Railway Company

• Citation: 39 S.W. 763,138 Mo. 293
• Parties: Bradley v. Chicago, Milwaukee & St. Paul Railway Company, Appellant
• Decision Date: 23 March 1897
• Court: Missouri Supreme Court

39 S.W. 763

138 Mo. 293

Bradley v. Chicago, Milwaukee & St. Paul Railway Company, Appellant

Supreme Court of Missouri, First Division

March 23, 1897

Appeal from the Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed and remanded.

Claude Hardwicke, H. H. Field and Frank Hagerman for appellant.

(1) A master owes no duty to provide a safe place for his employee when the only danger that exists arises solely by reason of the very work which the employee is required to perform. Minneapolis v. Lundin, 58 F. 529; R'y Co. v Jackson, 65 F. 48; Armour v. Hahn, 111 U.S 313, 318; Beesley v. Wheeler, 61 N.W. 658; Carlson v. R. R. Co., 28 P. 497 (Ore.) ; Allen v. R. R. Co., 37 S.W. 171; Fugler v. Bothe, 117 Mo. 475; Millar v. Madison Car Co., 130 Mo. 517. (2) If the foreman had been negligent, his would have been an act of a fellow servant. Anderson v. Winston, 31 F. 528. (3) There was in this case no negligence on the part of the foreman, he having given no order to plaintiff under circumstances where there was no time for reflection and the master owing no duty as to making a provision for a safe place. Ring v. R. R. Co., 112 Mo. 220, 230, 231. (4) Whatever danger there was, was perfectly evident to Bradley and was a risk assumed by him. Jackson v. R. R. Co., 104 Mo. 448; Thomas v. R. R. Co., 109 Mo. 187, 200; Ring v. R. R. Co., 112 Mo. 220; Junior v. Mo Electric Co., 127 Mo. 79; Lucey v. Hannibal Oil Co., 129 Mo. 40. (5) There is under no circumstances a requirement upon the master to provide a safe place. All that is required of him is to exercise reasonable care to provide a reasonably safe place. Holloran v. Union, etc., Co., 35 S.W. 260; Tabler v. R'y Co., 93 Mo. 79. (6) The last clause of instruction 1 authorizes a verdict for plaintiff upon finding certain facts, without any submission of the issue of contributory negligence. Clay v. R. R. Co., 17 Mo.App. 629, 632; Sullivan v. R. R. Co., 88 Mo. 169, 182. (7) Plaintiff's instruction 3 is erroneous, in that it permits a recovery for physical pain that the plaintiff "may yet suffer in the future," not limiting the finding of the jury to such future pain as plaintiff would suffer or such as was reasonably certain that he would suffer. Fry v. R. R. Co., 45 Iowa 416; Bigelow v. Metropolitan St. R'y Co., 48 Mo.App. 367, 374; Curtis v. R. R. Co., 18 N.Y. 534. (8) For the purpose of proving negligence in failing to blast, the court permitted testimony to be offered that after the accident, blasting was resorted to. This was error. Alcorn v. R. R. Co., 108 Mo. 81, 90; Mahaney v. R. R. Co., 108 Mo. 191, 200.

J. M. Sandusky, W. K. Amick and R. A. Brown for respondent.

(1) It was the duty of the master to provide plaintiff a reasonably safe place in which to perform the duties of his employment. Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Hannibal & St. J. R. R. Co., 96 Mo. 207; C., B. & Q. R. R. Co. v. Avery, 109 Ill. 325; Mo. Pac. R'y Co. v. Crenshaw, 71 Texas, 345; Anderson v. Dennison, 117 Mass. 407. (2) The negligence of the foreman was the negligence of the master. He was the vice-principal, and not a fellow servant. McDermott v. The Hannibal & St. J. R'y Co., 87 Mo. 285; Dowling v. Allen & Co., 88 Mo. 293; Miller v. Mo. Pac. R'y Co., 109 Mo. 355. (3) The foreman was guilty of negligence. It was his duty to use reasonable care to keep the embankment in such condition that it would be safe to work about. (4) Plaintiff did not assume the risk of the falling of the embankment. The servant only assumes the ordinary and usual risks fairly incident to the employment, and this does not include the master's negligence. Schroeder v. C. & A. R'y Co., 108 Mo. 331; Pullman Palace Car Co. v. Laack, 143 Ill. 242; Gulf, Cal. & S. F. R. R. v. Silliphant, 70 Tex. 623; Aldridge v. Midland Blast & Furnace Co., 78 Mo. 559. (5) When the servant is ordered or required to work in a place of danger he may rely upon the superior knowledge of the master, and assume that the master will use reasonable care to protect him against danger, unless the danger is such as to threaten immediate injury, and the question as to whether the conditions are such as to threaten immediate injury is for the jury to determine. Huhn v. Mo. Pac. R'y Co., 92 Mo. 440-447; Shortel v. City of St. Joseph, 104 Mo. 114; Fogus v. C. & A. R. R. Co., 50 Mo.App. 250; Ballard v. C., R. I. & P. R. R. Co., 51 Mo.App. 453. (6) Plaintiff's instruction numbered 1 properly declared the law. It is the duty of the master to use ordinary care and diligence to provide the servant a safe place at which to work. (7) Russell was the vice-principal. He had charge and control of the work, told the men when and where to work, and hired and discharged them at pleasure, and it makes no difference whether he be called superintendent, conductor, boss, or foreman. (8) The only question of contributory negligence that there was in the case was fairly submitted. The jury was told that if they found certain facts, the plaintiff would be entitled to recover, "unless the jury further believe from the evidence that the condition of the embankment around which plaintiff was working was such as to threaten such glaring, apparent, and immediate danger, that a person of ordinary care and prudence would have refused to work around it under the circumstances." This submitted the only question of contributory negligence that could possibly have been in the case. The word "threatening" was not used. Huhn v. Mo. Pac. R'y Co., 92 Mo. 440; O'Mellia v. R'y, 115 Mo. 205; Warner v. R'y, 62 Mo.App. 184; Fogus v. R'y, 50 Mo.App. 250. (9) The verdict was for the right party, and even if the instruction had been erroneous, the defendant was not prejudiced on account thereof. McLaughlin v. City, 77 Pa. St. 109-113; Boudett v. City, 40 Wis. 35; Fink v. Shroyer, 18 Ill. 418; Weiler v. Manhattan R. R. Co., 6 N.Y.S. 320; Browning v. Wabash Western R'y Co., 124 Mo. 55-71; R. S. 1889, sec. 2303; Force v. Williams, 35 Miss. 533. (10) The court did not committ error in admitting over defendant's objection, evidence that blasting was done after the accident occurred. Griffith v. Gillum, 31 Mo.App. 33; Brill v. Eddy, 115 Mo. 596. (11) The damages are not excessive. Furnish v. Mo. Pac. R'y Co., 102 Mo. 438.

Macfarlane, J. Barclay, P. J., and Brace, J., concur. Robinson, J., absent.

OPINION

Macfarlane, J.

An action to recover damages for personal injuries sustained by plaintiff through the alleged negligence of defendant for whom he was working as a laborer. A jury trial resulted in a verdict and judgment for plaintiff for $ 8,000. From the judgment defendant appealed.

The petition charges substantially that "from May 5 to June 13, 1892, plaintiff was in defendant's employ, with other laborers, engaged in digging and removing embankments of earth about thirty-five feet in height. In doing this work defendant used a steam shovel to dig away the base of the embankment and when that had been done it would cause the top thereof to be blasted off so as to prevent its falling upon the workmen about the shovel.

"On June 13, 1892, while plaintiff was working around the shovel, defendant's agents and servants in charge of the work negligently failed to have the top of the embankment blasted down when the base thereof had been dug away by the shovel, as had been done on all other embankments which plaintiff helped to remove; but instead of blasting the top of the embankment, defendant caused two men to pry the same off with crowbars where the base had been dug away by the steam shovel, when it was impossible, and was so known to defendant, for two men to pry off the top as fast as the shovel removed the earth from the base. On account thereof the embankment became top-heavy, and likely to fall upon the men working about the shovel. Defendant's foreman, agents, and servants in charge of the work knew, by the exercise of ordinary care could have known, of the dangerous and unsafe condition of the embankment and that it was liable to fall at any time; and while in such unsafe and dangerous condition, defendant's foreman, agents and servants in charge of the work negligently ordered and permitted the plaintiff to work around the shovel, and while so working the embankment fell upon and injured him."

The defendant's answer consisted of a general denial and pleas of contributory negligence, assumption of risk and negligence of fellow servants.

The evidence on the trial shows that defendant operated a railway through Jackson and Clay counties. In May and June, 1892, it was engaged, by means of a steam shovel, in removing earth from an embankment along its road in Clay county, loading the earth upon cars, and carrying it over the road to Jackson county for the purpose of making a fill. The embankment, from which the earth was being taken, was about thirty feet high. Plaintiff and a number of other laborers were employed in this work under the superintendence of a foreman.

The railroad ran east and west through a deep cut with an embankment on each side. The appliances for removing the earth, and loading it upon the cars, consisted of a crane about twelve feet long with a large steel shovel at the end operated by steam power. The shovel, when operated, swung in a circle, the earth was scooped out of the embankment and the shovel of earth was swung round to the car and unloaded upon it. The shovel could not be raised higher than twelve feet so the earth was taken from the bottom of the embankment, thereby undermining it. Some of the laborers worked the shovel at the base of the embankment and others worked on top of the embankment, blasting, or prodding with crowbars, the earth down when undermined by the shovel. This was all done under the direction of the foreman.

The work, for a time,...