Fischer v. City of Cape Girardeau

• Decision Date: 14 September 1939
• Docket Number: 35621
• Citation: 131 S.W.2d 521,345 Mo. 122
• Parties: Valentine Fischer v. The City of Cape Girardeau, a Municipal Corporation, and H. L. Coffman, Appellants
• Court: Missouri Supreme Court

131 S.W.2d 521

345 Mo. 122

Valentine Fischer v. The City of Cape Girardeau, a Municipal Corporation, and H. L. Coffman, Appellants

No. 35621

Supreme Court of Missouri

September 14, 1939

Appeal from Cape Girardeau Court of Common Pleas; Hon. L. L Bowman, Judge;

Reversed.

Dearmont Spradling & Dalton and B. Hugh Smith for appellants.

(1) The master is not an insurer against all accidents that may overtake or befall the servant in his employment. Nugent v. Milling Co., 131 Mo. 245; Mathis v. Stockyards Co., 185 Mo. 445; Lowe v. Railroad Co., 265 Mo 587. (2) The testimony of the plaintiff relative to what was said to him by his fellow-servants or any directions given to him by his fellow-servants was incompetent and the court erred in permitting such testimony to be introduced into evidence. (3) Exclusion by the court of evidence on the part of the city offered by Mr. Coffman that ever so often he or an agent under him examined the shovels and tools of the city and discarded those unfit for further use was highly prejudicial to the defendant and the exclusion thereof by the court was error. (4) A city is not liable to its servant receiving an injury from the use of a simple tool if the city, its officers and agents have exercised ordinary care in furnishing said simple tool to its servant for use in his work. Stirling Coal & Coke Co. v. Fork, 141 Ky. 40, 131 S.W. 1030, 40 L. R. A. (N. S.) 837; Lowe v. Railroad Co., 265 Mo. 587; Mathis v. Stockyards Co., 185 Mo. 434; Schaum v. Telephone Co., 78 S.W.2d 439; Probst v. Heisinger Motor Co., 16 S.W.2d 1005; Nolan v. Halpin-Dwyer Const. Co., 29 S.W.2d 215.

Frank Lowry for respondent.

(1) As all testimony contained in respondent's supplemental abstracts is omitted from appellant's abstract, and as such testimony is important, the abstract fails to comply with the rules of his court and should be disregarded by the court. (2) Respondent admits the law as stated in point (2) of appellants' points and authorities. (3) No authority being cited under points (3) and (4) of appellants' points and authorities such points are treated as abandoned. (4) If there be an inequality between the master and the servant which would justify the jury in holding that a reasonably prudent person would not have furnished the tool but would have used it if it had been furnished him under the circumstances then the jury is at liberty to hold the master guilty and the servant blameless. Such an inequality exists if the defect was latent and could have been discovered by such an inspection as it is the duty of the master to make, but which would not be discovered by such an inspection as the servant, under the press of his duties could be expected to make. The parties would not be on an equal footing if the servant was inexperienced and therefore, although he understood the simple nature of the tool, did not understand the danger inherent in using it in work with which he was unfamiliar. Nolen v. Halpin-Dwyer Const. Co., 29 S.W.2d 219; Gray v. Doe Run Lead Co., 53 S.W.2d 877; Blucner v. Distilling Co., 157 S.W. 980; Probst v. Motor Co., 16 S.W.2d 1005; Pelster v. Boiler Co., 268 S.W.2d 870; State ex rel. v. Reynolds, 200 S.W. 57; State ex rel. Law Firm v. Trimble, 275 S.W. 291; Choate v. Springfield, 74 S.W.2d 869.

Douglas, J. All concur, except Hays, P. J., absent.

OPINION

DOUGLAS

Action for personal injuries. From a judgment for plaintiff for $ 8000, defendants appeal.

Plaintiff alleges that he was employed by the City of Cape Girardeau and was engaged in shoveling crushed rock; that the city was negligent in failing to furnish him with a safe and secure tool in that the scoop shovel supplied him was "old, weak, worn and thin;" that while he was shoveling the crushed rock his shovel came into contact with a rock frozen to the ground; that in order to scoop up this rock he pushed hard with his shovel against it, whereupon the weak and defective shovel, after holding for a moment, suddenly gave way and bent backwards throwing him forward with great force and violence causing him to strike his leg on the handle of his shovel and causing the injuries; that his injuries were directly due to the negligence and carelessness of defendant in furnishing him with an old, worn, thin, weak and unsafe shovel.

The rule is settled that a master must use ordinary and reasonable care to supply safe tools for his servants to use. This general rule has been qualified in some jurisdictions by what is known as the "simple tool" rule. Under the latter rule the general rule does not apply where the tool is of a simple nature easily understood and the defects, if any, open and apparent to the servant. However, we have held that the simple tool rule as applied elsewhere is not the law in this State where a servant never assumes a risk growing out of the negligence of the master. We have decided the rule to be one merely of contributory negligence under which a master may defend on the ground the tool was a simple device and any ordinary person could see the defects. Under such circumstances, use of a tool glaringly defective would show negligence on the part of the servant in doing a thing which an ordinarily careful and prudent man would not have done so that the servant would be denied relief because of his own negligence. [Williams v. Pryor, 272 Mo. 613, 200 S.W. 53.] Discussing that case in Gray v. Doe Run Lead Co., 331 Mo. 481, 53 S.W.2d 877, we said at 491: "In Williams v. Pryor, . . . we held that the so-called simple tool doctrine is in its last analysis 'nothing more than that of contributory negligence,' and although the Williams case was reversed by the Supreme Court of the United States (245 U.S. 43), yet it is still authority for holding that in a Missouri common-law action the simple tool doctrine is but an application of the doctrine of contributory negligence."

On the other hand, even though the duty of furnishing safe tools is imposed on the master, he is not an insurer of the safety of the servant in using the tool furnished. [Compton v. Construction Co., 315 Mo. 1068, 1083, 287 S.W. 474.] In other words the servant must show the failure to furnish a safe tool or, stated differently, the fact that the tool furnished was unsafe caused his injury. "The mere fact there is a negligent defect in an appliance furnished the servant by the master, does not make the master liable for the servant's injury; such defect must be the proximate or legal cause of the injury. . . . 'It is not enough to show an accident and an injury. A causal connection must be established between the accident and the negligence charged, in order to make out a case for the jury. Failing in this, as this plaintiff did, the court should take the case from the jury . . . for the reason that it would have no foundation in law or in fact to rest upon. . . . In other words, the mere occurrence of negligence and injury does not make the defendant liable. There must be a direct connection between the negligent act and the injury, and the negligence must be the proximate cause of the injury.'" [Van Bibber v. Swift & Co., 286 Mo. 317, 333, 228 S.W. 69.]

Applying this rule to the instant case, we find no substantial evidence of any causal connection between the condition of the shovel and the accident. It would seem instead that the manner in which the plaintiff used the shovel so as to be off balance when it went over the rock frozen to the ground must have been the cause of his fall. Surely anyone would know that any shovel would be likely to slip over rock frozen to the ground. The only testimony about the occasion of his injury was given by the plaintiff himself. He said that he was taken to a big pile of rock which had been crushed into pieces about the size of an egg from which a truck was to be loaded; that part of the rock pile was frozen and the shovel could not be pushed into it. He had noticed the edge of his shovel was worn and because of such worn condition "had little prongs on it." A fellow workman was shoveling on top of the pile and the plaintiff was cleaning up the loose rock from the ground. While he was pushing his shovel to fill it, it was stopped by the rock which was frozen to the ground. He exerted pressure on his shovel. His shovel slipped over this piece of rock and went into the pile causing him to fall forward and strike his leg against the handle of the shovel. He describes the casualty in these words: "I was shoveling, that rock being frozen you had to shovel pretty hard. I was shoveling there and all at once my shovel jumped out, as it jumped I fell forward and...