Crader v. St. Louis & San Francisco Railroad Company
| Decision Date | 03 March 1914 |
| Parties | DALLAS CRADER, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas.--Hon. R. G Ranney, Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans, Moses Whybark and A. P. Stewart for appellant.
(1) The demurrer to the evidence should have been sustained, because (a) There is an entire failure of proof that the pin maul was furnished to plaintiff by defendant. Blundell v. Mfg. Co., 189 Mo. 565; Smith v. Light & Power Co., 148 Mo.App. 572; Berry v. Railway, 124 Mo. 264. (b) But, assuming that it was furnished by defendant, the mere fact that it proved to be defective and plaintiff was injured, does not make out, for plaintiff, a prima-facie case of negligence on the part of defendant. Bowen v. Railway, 95 Mo. 268; Copeland v. Railroad, 175 Mo. 674; Klebe v. Distilling Co., 207 Mo. 489. (c) The risk of injury from a flying splinter from the pin maul was assumed by plaintiff. L'Houx v. Construction Co., 30 L. R. A. (N. S.) 800; Railway v. Phinney, 38 Ind.App. 546; Railway v. Ramp, 70 S.W. 568; Railway v. Weikel, 73 Kan. 763; Gillaspie v. Iron Works, 76 Kan. 70; Steinhauser v. Spraul, 127 Mo. 562; Mathis v. Stock Yards Co., 185 Mo. 434; Harris v. Railroad, 146 Mo.App. 542. (d) The pin maul was a "common tool," to which the duty of inspection by the master does not extend. Wachsmuth v. Electric Crane Co., 118 Mich. 275; Miller v. Railway, 47 N.Y.S. 285; Garnett v. Bridge Co., 98 F. 192; O'Brien v. Railway, 82 S.W. 319; Lynn v. Sugar Ref. Co., 128 Iowa 501; Golden v. Ellis, 104 Me. 177; Dompier v. Lewis, 131 Mich. 144; Koschman v. Ash, 98 Minn. 312; Demato v. Gas. Co., 67 A. 28; Martin v. Mfg. Co., 38 S.E. 876; Meyer v. Ladewig, 130 Wis. 566; Longpre v. Milling Co., 99 P. 131; Marich v. Ry. Co., 118 P. 764; 2 Neg. & Com. Cases Ann. 101; Mercer v. Railroad, 154 N.C. 399; 2 Neg. & Com. Cases Ann. 118; Fordyce v. Stafford, 57 Ark. 503; Dickenson v. Jenkins, 144 Mo.App. 136; Lowe v. Railroad, 165 Mo.App. 533; 1 Labatt on Master & Servant, Sec. 154, p. 331. (e) The evidence leaves it to conjecture whether plaintiff was injured by a sliver from the pin maul, or by one from the bolt which he was attempting to remove. Modlagl v. Foundry Co., 248 Mo. 587; Goransson v. Mfg. Co., 186 Mo. 307; Warner v. Railway, 178 Mo. 134; Trigg v. Land & Lbr. Co., 187 Mo. 227; McGrath v. Transit Co., 197 Mo. 104; Thornberry v. Mining Co., 126 Mo.App. 660; Smart v. Kansas City, 91 Mo.App. 586; Rogers v. Packing Co., 167 Mo.App. 49; Coin v. Lounge Co., 222 Mo. 508. (f) The pin maul was not designed nor intended for use as a punch, and plaintiff's use of it for such purpose was unauthorized and improper. York v. Railway, 117 Mo. 405. Holmes v. Brandenbaugh, 172 Mo. 53; Mathis v. Stock Yards Co., 185 Mo. 456; Jackson v. Elevator Co., 209 Mo. 506; Kelly v. Lawrence, 195 Mo. 87; Moran v. Brown, 27 Mo.App. 490; 1 Labatt on Master & Servant, sec. 26, pp. 59 and 63. (2) It was error to permit the witnesses, Bleckwendt and Hamilton, to give their opinions as to whether the pin maul was improperly tempered. Gutridge v. Railway, 94 Mo. 472; Hurt v. Railway, 94 Mo. 260. (3) Instruction No. 1 given for plaintiff is erroneous for two reasons: (a) It makes the master an insurer of the appliances furnished the servant. Blanton v. Dold, 109 Mo. 64; Minnier v. Railway, 167 Mo. 99; Chrismer v. Tel. Co., 194 Mo. 189; Beebe v. Transit Co., 206 Mo. 419; Brown v. Lnd. & Lbr. Co., 65 Mo.App. 162; Bennett v. Lbr. Co., 116 Mo.App. 699; Henson v. Stave Co., 151 Mo.App. 244. (b) It assumes that the pin maul was furnished by the defendant, in the absence of any evidence that it was so furnished. Smith v. Light & Power Co., 148 Mo.App. 582. (4) The verdict of the jury is excessive. Lemser v. Mfg. Co., 70 Mo.App. 209; Cook v. Railway, 94 Mo.App. 425; Orscheln v. Scott, 106 Mo.App. 583; Kielty v. Construction Co., 121 Mo.App. 58; Goetz v. Ambs, 22 Mo. 170; Bragg v. Railway, 192 Mo. 365.
Thomas F. Lane, H. E. Alexander and W. N. Davis for respondent.
(1) The demurrer to the evidence was properly overruled because: (a) The uncontradicted evidence shows that defendant furnished the pin maul for use by plaintiff. (b) The evidence tends strongly to prove that the pin maul was the property of defendant. (c) If not owned by defendant, yet the plaintiff was directed to use the pin maul. (d) The duty of a master to furnish his servant with reasonably safe appliances is not affected by the fact that an appliance which he supplies to his servants is owned by third persons: Clark v. Union Iron & Foundry Co., 234 Mo. 436; Sharpley v. Wright, 205 Pa. 253; 3 Labatt's Master & Servant, Sec. 1074. (e) Where the evidence tends to show that the instrument was the property of, or furnished by, defendant, or, that the servant was directed to use it in the conduct of the master's business, and that it was not properly tempered, causing an injury, and, that the master knew or was chargeable with knowledge of defects, a prima-facie case for the jury is made: Buckner v. Stockyards, 221 Mo. 700. (f) Under the Missouri doctrine that a servant never assumes the risk of the master's negligence, a servant, in the exercise of due care, may recover for injuries caused by splinters flying from hammers, chisels, punches and other similar tools, where the master knew of the defect or was chargeable with knowledge thereof: Duerst v. St. Louis Stamping Co., 163 Mo. 607; Johnson v. Railroad, 96 Mo. 340; Franklin v. Railroad, 97 Mo.App. 473; Robbins v. Big Circle Mining Co., 105 Mo.App. 78; Buckner v. Stockyards, 221 Mo. 700; Minnier v. Railway, 167 Mo. 99. (g) A foreman in charge of laborers is a vice-principal, and, where he directs a laborer to use defective appliances, and injury results therefrom, the master is liable: Sullivan v. Railroad, 107 Mo. 66; Burkard v. A. Leschen & Sons Rope Co., 217 Mo. 466. (h) Though the employee, so injured, knew of the defect in the appliance, yet did not know of the danger to which it subjected him, but the foreman did know it or could have known it had he done his duty, the master is liable: Sullivan v. Railroad, 107 Mo. 66; Booth v. Railroad, 76 Mo.App. 516; Robbins v. Big Circle Mining Co., 105 Mo.App. 78; Minnier v. Railroad, 167 Mo. 120. (i) The master may be chargeable with negligence, in failing to ascertain a danger, where the servant is not: Clark v. Union Iron & Foundry Co., 234 Mo. 436; Clow v. Boltz, 92 F. 572; 34 C. C. A. 550; Railway v. Jaroi, 53 F. 68; 3 C. C. A. 436. (j) The servant may assume that the master has performed his duty in furnishing reasonably safe instrumentalities: Goransson v. Mfg. Co., 186 Mo. 300; Love v. Mfg. Co., 160 Mo. 608; Robbins v. Big Circle Mining Co., 105 Mo.App. 78. (k) Negligent ignorance is equivalent to knowledge: O'Mellia v. Railroad, 115 Mo. 205; Hamilton v. Mining Co., 108 Mo. 364; Hester v. Jacob Dold Packing Co., 84 Mo.App. 451. (1) It is the master's duty to inspect and keep appliances and tools in a reasonably safe condition for the use of his servants: Deckerd v. Wabash, 111 Mo.App. 117. (m) The master cannot absolve himself from liability where he is guilty of negligence in furnishing an unsafe tool, even though it be a common tool: Warner v. Railroad, 62 Mo.App. 184. (n) There is no evidence, either positive or inferential, that plaintiff was injured by a sliver from the bolt that he was attempting to remove. The positive and inferential evidence is, that he was injured by a sliver from the pin maul. (o) The evidence almost conclusively shows that the pin maul was designed, among other purposes, and used for drifting bolts. The evidence in this case shows that it was especially adapted and used for removing this extraordinarily tight bolt. (2) The evidence of witnesses Bleckwendt and Hamilton, was properly admitted, to show that the pin maul was not properly tempered: Goransson v. Mfg. Co., 186 Mo. 300; Duerst v. Stamping Co., 163 Mo. 607; Franklin v. Railroad, 97 Mo.App. 473; Johnson v. Railroad, 96 Mo. 341. (3) Instruction No. 1 for plaintiff correctly declares the law of this State, for the following reasons: (a) It goes no further than imposing the duty on the master to furnish reasonably safe appliances or tools. This instruction has been approved on similar facts in Duerst v. Stamping Co., 163 Mo. 607; Goransson v. Mfg. Co., 186 Mo. 300; Love v. Mfg. Co., 160 Mo. 608; Robbins v. Big Circle Mining Co., 105 Mo.App. 78; Pendergrass v. Railroad, 179 Mo.App. 517. (b) If there is error in plaintiff's instruction No. 1, it is cured by defendant's instruction No. 4, which advises the jury that the master is not an insurer of the appliances furnished his servant, and, that the master is required to use only ordinary care in furnishing appliances which are reasonably safe: Deckerd v. Railroad, 111 Mo.App. 117; Pendergrass v. Railroad, supra. (c) The instruction expressly requires the jury to find that the pin maul was furnished by defendant, and as there was evidence to support it, it was properly submitted to the jury. (4) The verdict of the jury was not excessive: Johnson v. Railroad, 96 Mo. 341; Van Hul v. Great Northern R. Co., 90 Minn. 329; Galveston R. Co. v. Whisenhunt, 36 Tex. Civil App. 135.
This is an action for personal injuries sustained by plaintiff while in the employ of defendant railroad company. Plaintiff recovered and the defendant prosecutes the appeal.
At the time of plaintiff's injuries, to-wit, July 25, 1911, he was working for the defendant as a car repairer, at its car shops at Chaffee, Missouri. It appears that he had previously worked for the defendant in a similar capacity, but had been out of its...
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