Dales v. Chicago, Burlington & Quincy Railroad Co.
| Decision Date | 14 December 1912 |
| Citation | 152 S.W. 401,169 Mo.App. 183 |
| Parties | JIM DALES, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted November 12, 1912. [Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.
AFFIRMED.
STATEMENT.--Action by plaintiff against defendant, appellant here, for damages on account of loss of his eye while engaged in the employment of appellant. It is set out in the petition that plaintiff in the performance of his duty, was assisting in the work of cutting off the end of an iron or steel rail, under the eye and immediate supervision and direction of defendant's foreman; that under the direction of the foreman plaintiff was holding the rail in place while the foreman was himself holding a heavy iron or steel chisel upon the rail and another employee of defendant was, by direction of the foreman, using a sledge hammer and striking the chisel heavy blows with it for the purpose of cutting the rail in two that defendant carelessly and negligently failed to exercise reasonable and ordinary care to furnish for the use of its employees a chisel that was reasonably safe for the purpose of cutting the rail, "but carelessly and negligently furnished a chisel that was old and badly worn down from long use and heavy licks that had long been applied to it, and the top of the chisel was worn, cracked, rough and scaled, and the edges of the top thereof were uneven, worn and jagged all of which made the chisel unreasonably unsafe for the purposes for which it was intended to be used, and for which it was then and there at the time being used, because of danger of the pieces of the top of the chisel breaking off when struck any licks with the sledge hammer, as it was necessary that it should be struck, and it was then and there at the time being struck, by direction of defendant's foreman." That the condition of the chisel and the danger incident to the use thereof for the purposes for which it was being used were well known to defendant, or by the exercise of ordinary care on its part would have been known to it, for it furnished the chisel for use on that occasion, but plaintiff did not know and did not have equal opportunity with defendant for knowing the condition of the chisel referred to and the danger incident to the use thereof for the purposes for which it was then and there being used; that while plaintiff was holding the rail in place and the chisel was being held on the rail by the foreman and was being struck heavy blows by the hammer by direction of the foreman in order to cut the rail, "and as a result of the defective condition of the chisel when it was so struck a small piece of the top of the chisel flew into plaintiff's left eye, inflicting serious injury thereto, so that it became necessary for plaintiff to have the eyeball of that eye entirely removed." Damages are demanded in the sum of $ 1999.
The answer, after a general denial, avers contributory negligence on the part of plaintiff and that of his fellow-servants and employees; that the accident whereby plaintiff alleges he was injured occurred in the State of Illinois; that under the laws of that State plaintiff is not entitled to recover against defendant for any act of negligence of his fellow-servants or colaborers resulting in injury to him. It is further charged in the answer that the injury, if any, resulted from the risk incident to plaintiff's employment; that it could not have been foreseen by defendant if not by plaintiff and was a risk assumed by plaintiff by reason of his employment.
To this a general denial by way of reply was filed.
The cause was heard before the court and a jury. Plaintiff testified, in substance, that he was a Greek; was employed by defendant with about fifty-five other Greeks, who were working for defendant, near Winchester, Illinois, under the direction of one Hammon, the head foreman. The force was divided into different gangs, all working along defendant's track and under the general supervision of this foreman, who gave directions to the separate divisions or gangs; that on the day plaintiff was injured he was working in a subdivision or gang of twelve men over which Hammon, the foreman, had immediate control, he being the only one who gave orders. Part of the time in the course of his employment plaintiff spiked ties and at other times picked up and assisted in the work of lifting up and putting rails upon the track. A subdivision or assistant foreman, named Fache, was there at the time and acted as interpreter between the foreman and the laborers. The foreman told plaintiff to hold the rail which was about to be cut. Hammon was holding the chisel and plaintiff had hold of the rail about eight or ten feet back from this chisel. When the first blow was struck on the chisel plaintiff was standing up and the foreman told him to hold the rail and he sat on it. Another laborer was striking the chisel under the direction of the foreman and while plaintiff was still holding the rail a piece of the chisel flew off and hit plaintiff in his left eye. He was taken to a surgeon and the splinter immediately taken out of the eyeball and the eyeball removed. Plaintiff testified that he had never examined the chisel or seen it either before or after the time of the accident. On cross-examination plaintiff testified that he had not seen this chisel or the chisels and other tools used on the track; they were scattered about and there was a man employed to pick them up.
Fache, the assistant foreman, testified for plaintiff to the effect that on the morning of the accident he (Fache) had a chisel with which he had been cutting rails; it was not a good one; had been cutting rails two or three times that morning; cut the last rail about half past eleven o'clock; the chisel he had used was mashed on the top; had been used too many times; was split and cracked into about two or three cracks; used that chisel in the morning and a little piece flew off and he threw the chisel to the other side of the fence and told the foreman, Hammon, not to use it any more; threw it away because he did not want to work with it; was afraid he would get hurt; had told the foreman that when he (witness) cut the rail, that this was a poor chisel; didn't like to use it himself to cut rails and didn't want to work with that chisel. Witness told Hammon that he would throw it away; would not use it; threw it over the fence. The foreman was standing there at the time witness told him this. Witness did not see the accident happen to plaintiff but saw him five or ten minutes after he was hurt; saw blood running from his eye and took him to the surgeon at Winchester; saw the surgeon take a little piece of steel out of plaintiff's eye; it was about a half inch wide and narrow so that it was about an eighth of an inch at the end. The hammer they were using was in good condition; was a ten pound hammer. On cross-examination witness repeated that he had thrown the chisel over the railroad barbed wire fence; that the tools the gang were working with consisted of tongs, chisels and crowbars and were scattered along the track; that on the day of the accident they had about four chisels, the others having been sent away for repair; did not know who went after the chisel he had thrown away and brought it back; saw it again after plaintiff was hurt, close to the track; knew it was the same chisel that had been used at the time plaintiff was hurt; that the use of the chisel in cutting rails causes the head to be battered down; any person who was a striker or holder of a chisel could see that it would batter down in the course of the work; laborers could see it when they went by.
Another witness, testifying for plaintiff, stated that he was the one who used the hammer on the day of the accident, the foreman having hold of the chisel. He saw the piece fly off of the chisel, the top of which was cracked in two or three places. While he was hitting with the hammer a piece flew and hit Dales in the eye. The whole top of the chisel was turned down; had seen Fache, the assistant foreman, throw this chisel away and had seen Hammon, the foreman, pick up the same chisel by the fence where Fache had thrown it; that was the same chisel Hammon was holding in his hand when plaintiff was hurt. Witness had struck two blows on the chisel and at the third blow the plaintiff was hurt. At that time the chisel was being held in place by the foreman and was resting on the middle side of the top of the rail. After plaintiff was hurt they took him to the doctor and they took the piece out and brought it back and proved it was from the same chisel; took the piece and fit it in that chisel. On cross-examination this witness testified that he saw Hammon, the foreman, fetch the chisel and cut the rail with it. Hammon had the chisel in his hand when he was climbing the fence; was about a rail or two distant from the assistant foreman when the latter was talking to the foreman about the chisel. He heard the assistant tell Hammon not to take that chisel back; that it was no good.
Another witness testified that he had seen Fache, the assistant foreman, throw the chisel away that morning; saw him throw it outside the fence and saw the foreman get it after dinner and start to cut the rail with it. When the piece of steel hit plaintiff in the eye, he (plaintiff) was about four feet from the striker. On cross-examination witness testified that he saw the foreman climb over the fence and get the chisel that Fache had thrown away and that when the foreman picked up the chisel he came back and started to work again. The foreman began cutting rails immediately after he got this chisel; saw the piece...
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