Emery v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 18 December 1922
• Docket Number: No. 23070.,23070.
• Citation: 296 Mo. 674,246 S.W. 335
• Court: Missouri Supreme Court
• Parties: EMERY v. CHICAGO, R. I. & P. RY. CO.

246 S.W. 335

296 Mo. 674

EMERY v. CHICAGO, R. I. & P. RY. CO.

No. 23070.

Supreme Court of Missouri, Division No. 1.

December 18, 1922.

Motion for Rehearing Denied December 30, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Varies, Judge.

Action by Arthur Emery against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John E. Dolman, of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

ELDER, J.

This is an action by respondent to recover damages for the loss of an eye alleged to have been destroyed while assisting in removing iron angle bars which connected the joints "of the iron rails of appellant's main line of track near Amity, Missouri. The accident occurred while respondent was striking the head of a steel chisel, held by another employé of appellant, with an iron sledge or maul. The chisel was shaped like a hatchet or wedge, had a wooden handle, and was being inserted between the web of the rail and the angle bar in order to drive the angle bar loose from the rail to which it was attached by an accumulation of rust. While striking the head of the chisel with the maul a piece of metal flew off (the evidence does not clearly disclose from where), striking respondent in the right eye.

The charge of negligence relied upon by respondent and submitted to the jury in the instructions given in his behalf is thus stated In the amended petition:

"* * * That the defendant and its servant, Charles McVicker, carelessly and negligently held the chisel while it was being struck with a maul in the hands of the plaintiff in an unsafe manner; and carelessly and negligently looked away and caused the chisel which he was holding to be moved as the plaintiff was in the act of striking the chisel with the maul, then and there causing the maul to strike against the head of the chisel and the rail in such a manner as to strike a glancing blow and cause pieces of iron to fly against and into the plaintiff's right eye."

The answer was a general denial coupled with pleas of contributory negligence and assumed risk.

The verdict of the jury was in favor of respondent for the sum of $12,000.00. From a judgment entered thereon appellant has prosecuted an appeal.

I. One of the contentions of appellant is that the court erred in not sustaining a demurrer to the evidence, interposed at the close of the whole case, upon the theory that respondent assumed the risk incident to the business of appellant as it was carried on. This calls for a review of the evidence.

The testimony of respondent was that he had been engaged in taking off angle bars and putting on new ones for a period of ten months before the injury; that sometimes he handled the chisel and sometimes the maul, but that he used the maul more frequently; that when the angle bars were stuck to the rail with rust the chisel would be inserted between the angle bar and the rail and then he hit with the maul or sledge; that at the time of the injury one Charles McVicker, another employé of appellant, was holding the chisel and respondent was handling the maul; that as respondent hit the chisel McVicker looked away and moved the chisel, raising the same and "I struck low on the chisel, a kind of glancing lick"; that a piece of metal thereupon flew in respondent's eye; that when the chisel was hit a square blow respondent had never had the experience of any iron flying up towards his eye; and that he had never before felt particles of iron or rust flying off.

"Q. You know that was frequently the case in knocking these things off, to have particles of rust, iron, and so forth, to fly up? A. Rust fly out to the side; yes.

"Q. It might have been a piece of rust flew in your eye, so far as you knew? A. Something went into my eye.

"Q. During all the time you were engaged taking off these angle bars, ten months previous to your injury, whenever you would strike the angle bar, strike with the maul on the chisel, particles of iron and rust would fly off as a result of that blow? A. Be no iron; be rust.

"Q. Say there would he rust—rust is iron, isn't it? A. To a certain extent.

"Q. Particles of rust would fly out? A. Yes.

"Q. And that happened during, all of the ten months you were working there? A. Yes.

"Q. Every time you had a piece of angle bar, hard, rusted on, wren you would hit it a hard blow with the hammer the particles of rust would fly out? A Yes, when you knocked it off it would.

"Q. You don't know whether particles of rust flew in your eye, put it out, or particles of steel, or what it was? A. No, sir, I don't; I know something hit me in the eye."

Charles McVicker testified in part as follows:

"Q. Tell the jury what experience you have had during the time you were working with Mr. Emery for ten months previous to this accident respecting particles of iron or rust flying from these angle bars when they would be struck by a maul or chisel? A. I had particles of rust fly end hit me in the face. Of course they didn't do any damage; a little bit is all.

"Q. Was that a frequent or infrequent occurrence? A. That was a frequent occurrence.

"Q. When, ordinarily, would the particles of rust and iron fly most—after the first blow, or after the second blow, or third blow, or whatever it took to take it off? A. The first and second blows it would fly if any flew at all, first or second blows.

"Q. Before the angle bar was loosened? A. Yes, sir.

"Q. Where would those particles of rust and iron come from'? A. Off the side of the angle bar.

"Q. The outside of the angle? A. The end.

"Q. Outside of the end of the angle bar? A. Yes, sir.

"Q. I wish you would tell the jury now whether or not Mr. Emery struck your chisel at the time he was injured a square or glancing blow? A. Seemed to me it was a square lick.

"Q. Explain to the jury—first tell the jury whether or not you can tell by the feel of the blow whether it is a glancing blow or a square blow? A. If it is a square blow the handle feels solid in your hand. If it is a glancing blow, whichever way it glances your handle turns.

"Q. Would that tend to sting your hand? A. Yes, sir.

"Q. State to the jury whether or not he struck the chisel you were holding a square or glancing blow? A. Square blow.

"Q. Were you looking directly at the chisel at the time he hit it? A. No, sir.

"Q. Where were your eyes? A. Kind of turned my eyes away to keep from getting anything in my eyes.

"Q. Was that usual—to turn your eyes away? A. Yes, sir.

"Q. To keep particles from falling in them? A. Yes, sir.

"Q. You did that? A. Yes.

"Q. But did you move the handle one way or the other? A. I did not."

...