Deckerd v. Wabash Railroad Company

• Decision Date: 07 February 1905
• Citation: 85 S.W. 982,111 Mo.App. 117
• Parties: DECKERD, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

85 S.W. 982

111 Mo.App. 117

DECKERD, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 7, 1905

Appeal from Audrain Circuit Court.--Hon. H. W. Johnson, Judge.

AFFIRMED.

STATEMENT.

In September, 1903, plaintiff was in the employ of defendant working on its road as a section hand, in company with five or six other section men, under Hutchinson, the boss or foreman. Between five or six o'clock p. m., on September twenty-first, plaintiff and Fred Nedeschulte, a fellow-workman, were driving spikes into a cross-tie on opposite sides of a steel rail, when the maul used by Nedeschulte slipped from the handle and alighted upon the instep of plaintiff's left foot, causing a serious injury. The suit is to recover for this injury. The specific acts of negligence alleged in the petition, briefly stated are, first, defendant was negligent in furnishing plaintiff and Nedeschulte unsafe, defective and dangerous mauls second, it was negligent in putting a wooden handle in the maul in a loose and careless manner; third, it was negligent in permitting the wooden handle in the maul to become loose and unsafe; and fourth, it was negligent in failing to have the handle in the maul wedged, tightened and securely fastened.

The answer was a general denial and a plea that plaintiff assumed whatever risk there was in the use of the maul and was guilty of contributory negligence.

The evidence shows that Hutchinson, the foreman, had been engaged in that character of work for over twenty years, and that both plaintiff and Nedeschulte had worked as section men on railroads for a sufficient length of time to become familiar with such work and with the tools used in the work, and were in fact, familiar with both. The mauls used to drive spikes were made of iron or steel, were about ten inches in length and weighed about ten pounds. There was an eye made in the center of each maul to receive the handle. The handles were from three to three and one-half feet long and were of hardwood (hickory or white oak). The life of a handle was about six months. When received the handles were a little too large for the eye of a maul and were whittled down with a pocket knife and then driven into the eye of the maul and wedged by driving one or two iron wedges into the end of the handle. Hutchinson put in new handles and did the wedging. The evidence also shows that after being in for some time the handles frequently shrunk and became loose from exposure to the weather; when this occurred either Hutchinson or some one of the men would rewedge them, using for the purpose wire nails, spikes or any suitable piece of iron at hand. All the tools (picks, shovels and mauls) used by the section men were brought in on a handcar every evening and stored in a toolhouse and taken out the following morning on a handcar to the place of work, the workmen picking up the first tool handy of the kind they were directed to use, so that no particular tool was used exclusively by any one workman. The evidence further shows that the blows to send home a spike were brought down with all the strength of the driver, and occasionally a maul would slip from the handle. The handle in the maul that struck plaintiff on the foot was a new hickory handle and had been used about two or three weeks only.

Nedeschulte testified that when he picked the maul up, he did not notice that the handle was loose or that there was anything wrong with it. On the part of plaintiff, the evidence is that the handle was wedged with one small wire nail. Hutchinson testified for the defendant that he put the handle in and wedged it with one or two good iron wedges, the customary manner of wedging the handles. The evidence for both parties shows that it is necessary to wedge the handles to make them secure and unless wedged the mauls are quite likely to fly off when used; it also shows that a small wire nail is an insufficient wedge to hold a maul securely on the handle. The evidence further shows that Hutchinson overlooked the tools daily, in a general way, to see that they were all right and that the men often wedged a handle of their own motion, when they found one loose.

In respect to the accident, plaintiff testified as follows:

"We were spiking west of the depot on the Wabash track; I was on the south side of the track and Mr. Nedeschulte was on the north side of the track, and we were standing facing one another, and I set my spike and tapped it so it wouldn't fly away, and then waited for him to set his spike; after he set his spike I let him hit it one lick, so as to be sure it wouldn't get away; then, when he started to hit again--he had done hit it one hard lick--so when he went to strike again I started to strike my spike, his maul came off and hit me on the foot when I was in a motion to strike." Plaintiff further testified that the spikes which were being driven were about one-half inch square and about five inches in length and that the tie in which they were driving them, at the time he was hurt, was a new one that had just been slipped under the rails to take the place of an old one removed.

The physicians who attended the plaintiff testified that the metatarsal bones of the foot were fractured and lacerated and, in their opinion, the injury was permanent; that the left leg had shrunk for want of proper nourishment, as a result of the injury to the foot.

Plaintiff was not able to bear any weight on the foot at the trial and had to go on crutches. He testified that he had suffered a great deal of pain from the injury and was still suffering; that he had become weak and nervous and was unable to sleep well.

Two physicians for defendant, who made an examination of plaintiff's foot during the progress of the trial, testified that the foot was one-fourth of an inch larger in circumference than the other, and that the enlargement extended over the whole foot; that there was no evidence present that any bones had been broken and, in their opinion, none were broken and the injury was not permanent. They also testified, in effect, that the injury had been improperly treated; that bacteria had been allowed to get into the wound and cause suppuration, etc.

At the end of plaintiff's case and again at the close of all the evidence, defendant moved the court to instruct the jury that under the law and the evidence plaintiff could not recover. These instructions were denied and under instructions given by the court, the jury found for plaintiff and assessed his damages at $ 1,500. After taking the usual steps to preserve its exceptions, defendant appealed.

Judgment affirmed.

Geo. S. Grover and Geo. Robertson for appellant.

(1) At the close of the plaintiff's case, the demurrer to the evidence should have been sustained. Smith v. Railway, 69 Mo. 32; Bowen v. Railway, 95 Mo. 274; Cagney v. Railway, 69 Mo. 416; Fugler v. Bothe, 117 Mo. 475, 22 S.W. 1113; Steinhauser v. Spraul, 127 Mo. 562, 28 S.W. 620, 30 S.W. 102; Epperson v. Tel. Co., 155 Mo. 346, 50 S.W. 795, 55 S.W. 1050; Minnier v. Railway, 167 Mo. 112, 66 S.W. 1072; Stalzer v. Packing Co., 84 Mo.App. 570; Anderson v. Forrester-Nace Co., 103 Mo.App. 382, 77 S.W. 486. (2) At the close of the whole case, the court below should have directed a verdict in the defendant's favor. The conflict between the instructions given at the request of plaintiff, and those given for the defendant, was prejudicial. Quirk v. Elevator Co., 126 Mo. 279, 28 S.W. 1080.

Fry & Rodgers for respondent.

(1) The employee is not required to exercise the same degree of care and diligence in investigating the risks to which he may be exposed as the employer, but has a right to presume that the employer will furnish him reasonably safe appliances with which to perform the work. Thompson v. Railway, 86 Mo.App. 148; Porter v. Railroad, 71 Mo. 79. (2) The defendant was bound to furnish his servants reasonably safe tools with which to do their work, and the plaintiff did not assume the risk of danger from the use of unsafe tools. Bender v. Railway, 137 Mo. 241, 37 S.W. 132; Epperson v. Tel. Co., 155 Mo. 282, 50 S.W. 795, 55 S.W. 1050; Nicholds v. Plate Glass Co., 126 Mo. 57, 28 S.W. 991. (3) Even though plaintiff and his superior, Hutchinson, had equal opportunities to discover that the maul was insecurely fastened on the handle, that doesn't preclude a recovery, for it was not the duty of plaintiff to look out for defects, save such as are open to his observation in the ordinary use of the implement. Gutridge v. Railroad, 105 Mo. 524, 16 S.W. 943. (4) The mere fact that the maul came off the handle casts upon the defendant the necessity of explaining and unless it accounts for that fact in a way showing it was not negligence, then it is liable. Johnson v. Railway, 104 Mo.App. 592, 78 S.W. 275; Raney v. Lanchance, 96 Mo.App. 483, 70 S.W. 376; Och v. Railway, 103 Mo. 52; Tateman v. Railway, 96 Mo.App. 453, 70 S.W. 514; Menster v. Railway, 53 Mo.App. 282.

OPINION

BLAND, P. J. (after stating the facts).

1. The accident was not novel in its character nor one that is altogether unusual; such misfortunes befell in the time of Moses, as we read in Holy Writ this wise and venerable lawgiver laid down a just rule of law in respect to them. He commanded the Israelites to divide their coasts in three parts and build cities of refuge in each of them to which the unmalicious slayer might flee and live. The unfortunate wielder of an axe was classed as one who might escape the avenger of blood. Moses said: "As when a man goeth into the wood with his neighbor to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbor; that he die; he shall flee unto one of...