Ernst v. Union Depot Bridge & Terminal Ry. Co.

• Decision Date: 20 November 1923
• Docket Number: No. 23197.,23197.
• Citation: 256 S.W. 222
• Court: Missouri Supreme Court
• Parties: ERNST v. UNION DEPOT BRIDGE & TERMINAL RY. CO.

256 S.W. 222

ERNST v. UNION DEPOT BRIDGE & TERMINAL RY. CO.

No. 23197.

Supreme Court of Missouri, in Banc.

November 20, 1923.

Appeal from Circuit Court, Jackson County; Charles It. Pence, Judge.

Action by Louis Ernst against the Union Depot Bridge & Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cyrus Crane and Kenneth McC. De Weese, both of Kansas City, for appellant.

Clif Langsdale, of Kansas City, for respondent.

Statement.

WOODSON, C. J.

The plaintiff brought this suit in the circuit court of Jackson county against the defendant to recover $25,000 damages for injuries sustained through the alleged negligence of the defendant. The petition was in conventional form, and the answer was a general denial, contributory negligence, and assumption of risk. A trial was had before the court and jury, which resulted in a verdict and judgment therein for the plaintiff for the sum of $12,500.

After moving unsuccessfully for a new trial, the defendant in due time and proper form appealed the cause to this court.

I will set out the facts as counsel for the respective parties practically concede them to be.

The defendant owns and operates a double-track street railway between Kansas City, and North Kansas City, Mo. It is operated electrically by an overhead trolley wire system. These wires are supported by span wires attached to trolley poles on either side of the double-track railway. The railway crosses the Missouri river on the upper deck of a bridge. The plaintiff was engaged or employed by the defendant as a lineman, about the last of February or the first of March, 1920.

On or about the 14th of April, 1920, while the plaintiff was engaged in repairing a "hanger" on a span wire and inserting the trolley wire into the "hanger" by use of an extension ladder, by Inning the ladder against the span wire, and then moving the ladder so as to reach the span wire and hanger, the span wire broke, the ladder fell to the floor of the bridge with plaintiff standing on a rung of the ladder, and he sustained injuries to both of his feet.

For his assignment of negligence on the part of defendants, he alleges that—

"For assignment of negligence against the defendants plaintiff states that the defendants, their said agents and vice principals, carelessly and negligently failed to exercise ordinary care to furnish him with reasonably safe appliances with which to work, in this, that instead of furnishing him with a tower as is, and was at all the times herein mentioned, customarily done and used by employers and others engaged in similar work in and near the vicinity of the property of the defendants, they furnished him with the said ladder, as aforesaid, when the said defendants, their said agents and vice principals, knew or by the exercise of ordinary care might have known that to place said ladder against said span wire, as it was necessary, convenient, and practicable for plaintiff to do, to do said work, might and would cause said span wire to break and might and would cause said ladder to fall and plaintiff to fall and be injured.

"Plaintiff further states that the span wire was old and defective and of insufficient strength for the purpose for which plaintiff was called upon to use it, as aforesaid; that the defendants, their said agents and vice principals, carelessly and negligently maintained said span wire in said condition when they knew, or by the exercise of ordinary care and caution would have known, that plaintiff might and would be called upon to use said span wire, as aforesaid, and that the same might and work break and permit plaintiff to fall, as aforesaid, and be injured."

So much of the first specification of negligence as related to not furnishing a tower was withdrawn from the consideration of the jury by defendants' instruction A and is not covered by plaintiff's general instruction No. 1.

By way of separate answer the appellant Union Depot Bridge & Terminal Railroad Company, in addition to a general denial, pleaded that—

"(2) Further answering, this defendant states that the plaintiff, Louis Ernst, directly caused or contributed to cause his injury, if any, by his own carelessness and negligence in this, to wit, that instead of using the tower which was provided for doing the work of the character that plaintiff was attempting to do at the time of his alleged injury, he undertook to do said work in a more dangerous way by using an extension ladder and leaning the same against the span wire, when he had " knowledge of the condition of the said wire, and that it was dangerous to attempt to perform the work in the manner in which he did attempt to perform it, and that he was careless and negligent in voluntarily choosing and using the extension ladder for the work in question, instead of a tower, and attempting to do the same in that manner when he had full knowledge of the dangers incident to that manner of doing the work.

"(3) Further answering, defendant states that plaintiff voluntarily assumed the risk of being injured at the time in question, in that he had knowledge of the condition of the wires, of the proper and customary way of doing the work by the use of the tower, and that with the wires in the condition they were, as known to him, it was dangerous to use an extension ladder and lean the same against the span wire, and that with such knowledge plaintiff consented to and did undertake to do the work with the ladder instead of the tower, and thereby assumed the risk of accident and injury, and is not entitled to recover damages against this defendant on account thereof."

Plaintiff testified that he was an old and experienced lineman before he went to work for the defendant, and that he went to work for the defendant as an experienced lineman. Had been engaged in that kind of work about four years, and understood the entire business. That he knew that the defendant had a tower car made for use in repairing such wires as plaintiff was repairing, and that it would have been much safer for plaintiff had he used the tower car for that purpose, than it was to use the ladder.

He also testified that the tower car had never been used in that business since he had been in the defendant's employment, and that it was located under a shed at the north end of the bridge over in Clay county off of the track, with two or three other cars backed in on the track in front of it, which rendered it impossible to be used with the force of men the company had at that time in that department of the work; that the defendant's foreman knew and saw him doing the work with the ladder; and that he complained to him, stating that it was dangerous to do the work in that way. The foreman assured him that the wires were safe, and directed him to go on and do the work with the ladder. That the wires were rusty, which could not be noticed from the ground, but could be seen when he was upon the ladder, but could not tell except from appearances that the rust had weakened the wires. That he then continued to work until he was injured. That when he fell the bones of his heels were broken and the arches of his feet were broken down, from which he suffered the usual, pain incident thereto, and was laid up for the usual time.

Opinion.

I. Counsel first contend that the trial court erred in not directing a verdict for the defendant. In our opinion this contention is untenable. The evidence for the plaintiff clearly made a case for the jury, and the evidence nowhere shows that the plaintiff was guilty of such contributory negligence as would, as a matter of law, defeat a recovery. In fact, am unable to see any act of contributory negligence committed on his part; and we have often held that there is no assumption of risk where the negligence of the defendant contributed to the injury of the plaintiff. This is so well founded in the law of this state, it would be a useless waste of time to cite authorities in support thereof.

II. It is next insisted that the plaintiff with full experience of a lineman was free to choose the method of doing the work, and was therefore responsible for his adoption of the careless or more dangerous method. In other words, that there were two methods open for the plaintiff to have performed his work, one a safe way, and the other a dangerous way, and he having chosen the dangerous one, he was guilty of such negligence that the law would not permit him to recover in this case.

The vice of this contention is that it has no foundation upon which to rest, for the reason that there was practically no evidence tending to show that there was but one way furnished for him to do his work and that was the way he did it. There was practically no evidence tending to show that the defendant furnished him a car with a platform on top of it from...