Franklin v. Missouri, Kansas & Texas Railway Co.

• Decision Date: 05 January 1903
• Citation: 71 S.W. 540,97 Mo.App. 473
• Parties: JOHN FRANKLIN, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

71 S.W. 540

97 Mo.App. 473

JOHN FRANKLIN, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 5, 1903

Appeal from Cole Circuit Court.--Hon. James E. Hazell, Judge.

AFFIRMED.

Judgment affirmed.

Geo. P B. Jackson for appellant.

(1) The evidence did not establish negligence on the part of defendant. The fact that plaintiff was injured is not enough to raise a presumption of negligence. Blanton v Dold, 109 Mo. 74; Bohn v. Railroad, 106 Mo 429; Carvin v. St. Louis, 151 Mo. 334; Railroad v. Nelms, 9 S. E. (Ga.) 1049. (2) The defendant was not required to furnish absolutely safe tools to the plaintiff. Its duty was to use such care as a person of common prudence would use in selecting tools reasonably safe for the purpose for which they were intended. The employer is not an insurer of the safety of the tools furnished by him. Blanton v. Dold, 109 Mo. 74; Bohn v. Railroad, 106 Mo. 429; Friel v. Railroad, 115 Mo. 503; Gutridge v. Railroad, 105 Mo. 520; Tabler v. Railroad, 93 Mo. 79; Bowen v. Railroad, 95 Mo. 268; Higgins v. Railroad, 43 Mo.App. 547; Marshall v. Hay Press Co., 69 Mo.App. 256; Krampe v. Brewing Co., 59 Mo.App. 277; Berning v. Medart, 56 Mo.App. 443; Muirhead v. Railroad, 19 Mo.App. 634; Conway v. Railroad, 24 Mo.App. 235. (3) Proof of the existence of a defect (if one actually existed) would not, of itself, establish a right of recovery. It must appear, not as mere conjecture, but as a legitimate inference that the defect was the proximate cause of the injury, and that the defendant was chargeable with knowledge of it. There was no such evidence in this case from which any such inference could be drawn. Breen v. Cooperage Co., 50 Mo.App. 202; Brown v. Lumber Co., 65 Mo.App. 162; Covy v. Railroad, 86 Mo. 635; Current v. Railroad, 86 Mo. 62; Railroad v. Nelms, 9 S. E. (Ga.) 1049. (4) The undisputed evidence clearly established that defendant had used all usual and reasonable care in procuring the mauls which it furnished to the gang of which plaintiff was a member, and that they were practically new at the time plaintiff was hurt. There was no evidence tending to show anything to the contrary, or that defendant had any reason to suspect any defect. Bohn v. Railroad, 106 Mo. 429, and other cases cited above. (5) For the foregoing reasons the court erred in refusing to sustain the demurrer to the evidence. (6) Moreover, plaintiff was guilty of negligence on his part, when he recklessly struck his maul against another one (the evidence leaves no room to doubt that that act was the cause of the injury) and that it was a thing that no prudent person would do. (7) The court erred in overruling the defendant's objection to evidence concerning the condition of any maul other than the one which caused the injury. Railroad v. Nelms, 9 S. E. (Ga.) 1049. (8) The court erred in amending defendant's seventh instruction, thereby enlarging the right of recovery beyond anything alleged in the petition. Brown v. Lumber Co., 65 Mo.App. 169; Covy v. Railroad, 86 Mo. 635. Nor was there any evidence to justify this amendment, even if it had been warranted by the petition.

Silver & Brown for respondent.

(1) The evidence in this case clearly made it one for the jury. Booth v. Railroad, 76 Mo.App. 516; Duerst v. Stamping Co., 163 Mo. 607. (2) The fact that an appliance breaks in using it as intended constitutes evidence that it was defective and unsafe, and the further fact that the defendant was then using it in its business is some evidence of its negligence. Moyniham v. Hills Co., 146 Mass. 591. (3) Plaintiff was justified in using the maul, although he saw it was defective, provided its condition was such that he might reasonably suppose he could, with care, use it safely. Booth v. Railroad, 76 Mo.App. 516, supra; O'Mellia v. Railroad, 115 Mo. 205. (4) That the defective character of the maul was known to defendant or could have been so known by the exercise of reasonable care on its part, were questions for the jury. Siela v. Railroad, 82 Mo. 430; Braun v. Railroad, 53 Iowa 595. (5) Possession of means of knowledge of a particular fact justifies the finding of the actual knowledge thereof. Kingel v. Knuckles, 69 S.W. 595. (6) Whether or not the plaintiff was hurt in striking the spike, as testified to by him, or by improperly striking another maul with the maul he was using, was, under the evidence, a controverted question of fact for the jury. Duerst v. Stamping Co., 163 Mo. 607; Duncan v. Matney, 29 Mo. 369. (7) The court did not err in admitting the evidence as to the defective condition of the other jug mauls used by plaintiff and his co-workmen at the time of plaintiff's injury. Rose v. St. Louis, 152 Mo. 602; Savannah v. Railroad, 85 Ga. 579; Luetgert v. Volker, 153 Ill. 385; Baxter v. Doe, 142 Mass. 358; Railroad v. Hill, 93 Ala. 514; Salem Co. v. Griffin, 139 Ind. 141; Pacheco v. Manufacturing Co. , 113 Cal. 541. (8) The court did not err in its modification of defendant's instruction 7. There was evidence tending to show that defendant's foreman, Johnson, authorized the use of the maul here complained of by defendant. He represented the defendant; was its vice-principal. Sullivan v. Railroad, 107 Mo. 66; Freiermuth v. McKee, 86 Mo.App. 64; Leeper v. Paschal, 70 Mo.App. 117. See 37 Mo. 341.

OPINION

SMITH, P. J.

Action to recover damages for personal injuries alleged to have been received.

The petition inter alia alleged that while the plaintiff was employed in the service of defendant it became and was his duty to put in place on defendant's track, steel rails and to fix them to crossties with spikes driven therein with mauls; that defendant carelessly and negligently furnished to plaintiff with which to perform his work and service aforesaid a defective appliance, to-wit, a steel maul; that the parts of said maul in and around the hammer thereof (and which parts it was necessary to strike on the spikes in driving them as aforesaid) were brittle and fragile and insufficiently tempered or hardened, so that by reason thereof a piece of said maul slivered, scaled and flew off, and struck plaintiff in his right eye, causing him great physical and mental pain and suffering, and the permanent loss of the sight of said eye; that plaintiff was ignorant of the defective and dangerous character of said maul, but that its defective character was known to defendant, or could have been known to it by the exercise of reasonable care on its part.

The answer was a general denial coupled with the plea of contributory negligence. There was a trial resulting in judgment for plaintiff and defendant appealed.

At the conclusion of the plaintiff's evidence and at the conclusion of all the evidence, the defendant asked an instruction in the nature of a demurrer thereto which was by the court refused, and this ruling is made one of the grounds of the defendant's assignment of error here. In view of this, it becomes our duty to determine whether or not, on the evidence adduced for plaintiff, the case was one for the jury.

It appears that the plaintiff was one of what was called an "extra gang" employed by defendant in laying steel rails, taking up old rails, putting in new ones, and doing whatever was required in that connection. Each of the extra gang employed was furnished by the defendant with a steel maul, or hammer, with which to do the work assigned to him. Some of them were jug and others bell-shaped. The plaintiff selected a jug maul and was told by the defendant's foreman to go behind where the new rails had been laid and spike them down so that it would be safe for the trains to pass over them. Just as he started to do this the foreman further told him that if he found a bent spike or saw any one else bend one, to be sure and straighten it up. He told plaintiff to put the maul behind and between the spike and rail and drive it back from the rail, straighten it up, take the maul out and drive it down, but if it was so badly bent that he could not do that, to get a claw bar, pull it out and throw it away.

Plaintiff testified that while doing the work as he had been directed by the foreman he saw a spike that some one had bent and thereupon he said to a co-employee, who was just behind him, "Stick your maul in here; let's straighten this up, and he accordingly put it in and I drove it up" by hitting it once or twice. The spike was in that way bent back from the rail so that it could be straightened up. After the maul had been withdrawn and the spike straightened up the plaintiff struck it two licks with his maul, and when he struck the second blow a piece of the maul flew off and struck him in the eye, causing its loss. The plaintiff further testified that after examining this maul prior to the accident and finding only some little pieces broken out of the head of it, he thought with care he could safely use it. After the accident the maul which plaintiff was handling was examined and it was found "that a little piece about the size of a grain of wheat had been broken out fresh." Plaintiff still further testified that the jug mauls furnished by defendant to the men employed on the work with him were generally more or less chipped up--"broken up around on the hammer part." Some had nicks in them "and were slivered and scaled off" and some of them "were breaking once in a while when being used by the men." The bell mauls in use, with one exception, were intact on their face.

Parenthetically and before making further allusion to the evidence in connection with the defendant's demurrers, it will not be out of place to pass upon the question of the propriety of the action of the trial court in admitting, over defendant's objections, evidence adduced by the plaintiff...