Cross v. Chicago, B. Q. R. Co

• Decision Date: 14 June 1915
• Docket Number: No. 11533.,11533.
• Citation: 191 Mo. App. 202,177 S.W. 1127
• Parties: CROSS v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Court of Appeals

177 S.W. 1127

191 Mo. App. 202

CROSS v. CHICAGO, B. & Q. R. CO.

No. 11533.

Kansas City Court of Appeals, Missouri.

June 14, 1915.

Rehearing Denied July 2, 1915.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

Action by John B. Cross against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Bailey & Hart, of Brookfield, J. C. Carr, of Cameron, and M. G. Roberts, of St. Joseph, for appellant. Bresnehen & West, of Brookfield, for respondent.

TRIMBLE, J.

Respondent was employed in appellant's roundhouse at Brookfield, Mo. When not engaged in operating the turntable, his duty was to wipe engines. In doing this, a ladder was used on which to ascend and descend from the engine; and perhaps the employé stood on the ladder at times during the wiping process. While thus working on an engine, he received a signal to go at once to the turntable. He descended the ladder, and, in stepping from the last rung to the ground, his right foot trod upon a piece of hose three or four inches in diameter lying on the ground, whereby his ankle was turned and badly sprained. This suit for damages resulted, in which it was charged that the defendant was negligent in placing and permitting said piece of hose to remain on the ground at a place much used by employés in working about said engines, whereby said place was rendered dangerous and unsafe.

The petition alleged, and the evidence showed, that the defendant was an interstate common carrier by railroad, and that plaintiff was in its employ and engaged in interstate commerce at the time. The suit is therefore under the federal Employers' Liability Act (35 Stat. at Large, p. 65, c. 149, as amended by Act April 5, 1910, 36 Stat. at Large, p. 291, c. 143). The answer pleaded contributory negligence and assumption of risk.

In view of the verdict in plaintiff's favor, we must accept the evidence in plaintiff's behalf at its full face valae, and it shows that the hose on which plaintiff stepped was a piece of "scrap" or "junk" hose about six or seven feet in length. It had been used in "blowing out" engines, but had been run over and cut off, so that it was no longer fit for use but should have gone to the scrap heap. It was lying on the ground at the side of the engine on which plaintiff was at work, and had been lying there for several days. The evidence further shows that defendant's rules required the foreman to see that the house was kept clean and in good order, and that the workmen performed their duties properly. He had under him five men whose duty it was to "pick up all material and everything in the roundhouse and sweep the floors every day and clean up," and it was the duty of these men, if there was a piece of scrap hose lying on the ground, to pick it up and put it on the scrap pile. While there was evidence that the hose used in blowing out an engine was attached to a hydrant midway between two engines in their stalls, and that such hose lay on the ground until the blowing out process was over, yet the evidence was that, as soon as the process was over, the hose was taken off to another engine; it was not allowed to remain on the floor indefinitely. Nor is there any evidence that, during the time the hose was in use, it was lying close to the engine where the wipers worked; but there was evidence that the piece of scrap on which plaintiff stepped "had been thrown back there" (that is, close to the engine side), where it was trod upon by plaintiff when he stepped from his ladder.

From the foregoing resume of the evidence in plaintiff's behalf, we think it clearly appears that there was sufficient evidence to support a finding that defendant was negligent in allowing the piece of scrap hose to lie so long on the ground at a place where the employés walked. Johnson v. Kansas City Bolt & Nut Co., 172 Mo. App. 214, 157 S. W. 665.

This brings us to the matters raised in defendant's answer, namely, contributory negligence and assumption of risk. With regard to contributory negligence, the Employers' Liability Act abrogates the rule which allows it to bar a recovery, and merely permits such negligence to diminish the damages. See section 3 of said act. But said act leaves the rule of "assumption of risk" still in force, except in the case of a violation by the carrier of a federal statute. So that, if plaintiff in this case was guilty of contributory negligence, that will only result in a diminution of his recoverable damages. But, if he assumed the risk, it will defeat his recovery entirely.

Upon this branch of the case, the evidence of plaintiff indisputably shows that the piece of scrap hose had been lying, where plaintiff stepped on it, for several days. Plaintiff admitted that he had seen this particular piece of hose there several times; he had seen it for several days and knew it was lying there; that he himself set the ladder right down by the hose; that the injury occurred about 3 o'clock in the afternoon of October 13, 1913, and he could have seen the hose as he came down the ladder, if he had looked for it.

It would seem that the act of plaintiff in setting the foot of the ladder down close by the scrap of hose he knew was there, and which he could have easily kicked out of the way, and his act in coming down the ladder and stepping off to the ground without looking where he stepped, would constitute contributory negligence, since these were positive, affirmative acts on his part, together with the neglect or omission to observe care for his own safety, and that these acts without care (i. e., negligence) "contributed" to his injury (that is, it joined with the negligence of defendant in bringing it about). If, now, it was contributory negligence and nothing more, then plaintiff's right to recover is not defeated, but his damages are reduced.

But if plaintiff occupied a broader status, and if, by reason of his knowledge of the long-continued presence of the hose scrap, of which he never complained, he assumed the risk of injury arising therefrom, then his right of recovery is defeated. In which category is plaintiff to be placed in this case? It would seem that the answer to this question would all depend upon what is considered as constituting assumption of risk. If we regard that rule as meaning that plaintiff, knowing of the defect and appreciating the danger, assumes the risk thereof, even though the defect arises from the defendant's negligence, then perhaps plaintiff should be held to have assumed the risk in this case. But, if we follow the rule that plaintiff does not assume the risk of a defect arising from defendant's negligence, then plaintiff should be said to have been merely guilty of contributory negligence.

The rule that a servant assumes the risk even of those dangers arising out of the master's negligence, provided the servant knows of and appreciates them, and he continues to work without complaint, is the one adopted by the federal courts. Seaboard Air Line Railway v. Horton, 233 U. S. 492, loc. cit. 504, 505, 34 Sup. Ct. 635, 640 (58 L. Ed. 1062). Justice Pitney here says:

"But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employé is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an or dinarily prudent person, under the circumstances, would have observed and appreciated them. * * * When the employé does know of the defect, and appreciates the risk that is attributable to it, then' if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employé assumes the risk, even though it arise out of the master's breach of duty."

See, also, Texas & Pacific R. Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188; Choctaw O. & Gulf Ry. Co. v. McDade, 191 U. S. 64, loc. cit. 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590, loc. cit. 596, 31 Sup. Ct. 561, 55 L. Ed. 596; Gila Valley, etc., R. Co. v. Hall, 232 U. S. 94, loc. cit. 102, 34 Sup. Ct. 229, 58 L. Ed. 521.

But this is not the rule in Missouri. George v. St. Louis, etc., R. Co., 225 Mo. 364, loc. cit. 407, 125 S. W. 196; Clippard v. St. Louis Transit Co., 202 Mo. 432, loc. cit. 446, 101 S. W. 44; Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703, 140 Am. St. Rep. 515; King v. St. Louis, etc., R. Co., 143 Mo. App. 279, loc. cit. 298, 127 S. W. 400; O'Brien v. Western Implement Co., 141 Mo. App. 331, 125 S. W. 804.

Hence the question arises which of these two rules concerning assumption of risk shall be applied in this case, wherein the rights of litigants, under a federal law, are to be adjudicated? In the above case of Seaboard Air Line Railway v. Horton, 233 U. S. 492, loc. cit. 507, 34 Sup. Ct. 635, 641 (58 L. Ed. 1062), it is said that the Employers' Liability Act, where none of the federal safety acts are involved, leaves the matter of assumption of risk "open to the ordinary application of the common-law rule." What does this mean? Does it mean the common-law rule as determined by the courts of the various states or the common law as interpreted by the federal courts? It would seem that, since the Employers' Liability Act is a general law enacted by Congress to regulate the responsibility of interstate common carriers by railroad to their employés engaged in carrying on commerce between the states, the purpose of Congress was to establish one general uniform law in that regard, and that therefore, not only the construction of that act by the federal courts, but the rules of decision adopted therein in applying and enforcing the act, should...