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

• Decision Date: 22 May 1916
• Docket Number: No. 11971.,11971.
• Court: Missouri Court of Appeals
• Parties: CROSS v. CHICAGO, B. & Q. R. CO.

186 S.W. 1130

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

No. 11971.

Kansas City Court of Appeals. Missouri.

May 22, 1916.

Rehearing Denied June 12, 1916.

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

"Not to be officially published."

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

H. J. Nelson, of St. Joseph, 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.

Defendant is an interstate carrier by railroad. Plaintiff was employed in defendant's roundhouse at Brookfield, Mo., and in descending from a ladder was injured by stepping upon a piece of scrap hose which the defendant had negligently allowed to remain on the floor. This is the second appeal of the case. The opinion in the first is reported in 191 Mo. App. 202, 177 S. W. 1127. At that time a judgment for $1,250 in plaintiff's favor was reversed, and the cause remanded on account of an error in an instruction on the measure of damages. This time plaintiff recovered judgment in the sum of $850, and defendant has again appealed.

In the second trial defendant offered no evidence, but stood upon its demurrer to the evidence adduced by plaintiff in support of his case. With possibly one slight exception, to be hereinafter noted, the evidence in behalf of plaintiff's case is the same now as in the first trial, and therefore, for the facts of the case and the points then in controversy, reference is made to the above-reported opinion, and they are not restated here.

The case is one under the Employers' Liability Act, and defendant contends now, as it did before, that plaintiff's evidence disclosed assumption of risk on his part, and not contributory negligence; the point of difference being, of course, that under the federal act the former would defeat plaintiff's recovery, while the latter would merely reduce the damages.

In the former opinion we expressed the view that, if plaintiff was to be charged with anything, his act in stepping off the ladder without looking where he stepped should be treated as contributory negligence, since it was a positive affirmative act on his part coupled with a neglect or omission to observe care for his own safety. See 191 Mo. App. 202, loc. cit. 205, 177 S. W. 1127. The distinction between contributory negligence and assumption of risk lies in the different states of mind in which they are rooted. Negligence is the result of inattention or oversight; assumption of risk implies knowledge of danger and willingness to encounter it. Dean v. Woodenware Works, 106 Mo. App. 167, loc. cit. 179, 80 S. W. 292; Adolff v. Columbia, etc., Co., 100 Mo. App. 199, loc. cit. 209, 73 S. W. 321; Dale v. Hill-O'Meara Construction Co., 108 Mo. App. 90, loc. cit. 97, 82 S. W. 1092; Charlton v. Railroad, 200 Mo. 413, loc. cit. 433, 98 S. W. 529. The Supreme Court of the United States says Congress has recognized the distinction between contributory negligence and assumption of risk, and that the distinction, although simple, is sometimes overlooked; that contributory negligence "involves the notion of some fault or breach of duty on the part of the employé," or is "a failure to use such care for his safety as ordinarily prudent employés in similar circumstances would use," while assumption of risk "may be free from any suggestion of fault or negligence on the part of the employé." Seaboard Air Line Railway v. Horton, 233 U. S. 492, loc. cit. 503, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C...