Gately v. St. Louis-San Francisco Ry. Co.

• Decision Date: 31 December 1932
• Docket Number: No. 29728.,29728.
• Citation: 56 S.W.2d 54
• Parties: WILLIAM C. GATELY v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

56 S.W.2d 54

WILLIAM C. GATELY v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 29728.

Supreme Court of Missouri, Division 2.

December 31, 1932.^*

Appeal from Dallas Circuit Court. — Hon. C.H. Skinker, Judge.

AFFIRMED.

E.T. Miller and Phil M. Donnelly for appellant.

This case was filed under the Federal Employers' Liability Act and, therefore, is governed by the rules of decision in the Federal courts. See v. Chicago, B. & Q. Railroad Co., 228 S.W. 519; Pryor v. Williams, 254 U.S. 43; C.M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472. In passing upon the demurrer the court should not only look at the evidence from the master's standpoint, but also from the standpoint of the servant; that is, with the view that, beginning with the servant and considering him, looks up to the master. Viewing plaintiff's evidence in that light, plaintiff is presumed to possess not only common sense, but a certain knowledge peculiar to his trade or art. It is held as sound law that the master may trust the servant to perform the intermediate, the ordinary and simple duties incident to the servant's employment, and, resting upon the servant's knowledge and skill, it is not necessary for the master to be present in person or constructively all of the time that the servant is working. Forbes v. Dunnavant, 198 Mo. 209. Also, the master has a right to exact of the servant an intelligent use of his senses in performing his work and that he take proper precautions for his own safety. This doctrine is limited by the further rule that the master may properly intrust to the servant the reasonable inspection and seeing to the repair of the tools and appliances used by him, and where plaintiff's injury results in whole or in part from his own negligence in this respect the master is not liable. Humphrey v. Lusk, 196 S.W. 55. In the case at bar plaintiff was an experienced workman and was familiar with the work in which he was engaged. He was using a very simple tool, a steel bar four or four and a half feet in length. This bar was inserted in a wrench, which wrench was fitted over the plugs in the boiler of an engine, and by pulling on the bar the plugs would be loosened or pulled. It was wholly within the power and control of the plaintiff as to the amount of strength that he would use or exert on this bar. In other words, plaintiff had more knowledge as to what he could do with the bar in question than his master had. He had used this bar and similar bars for over three years, and as said in Lowe v. St. Louis & San Francisco Railway Co., 178 S.W. 443: "In general a servant is not entitled to recover damages from his master for injury received in consequence of straining and overtaxing himself in lifting heavy objects in his master's service, since the servant is the judge of his own lifting capacity, and the risk of not overtaxing it rests upon him." Kempe v. Illinois C. Railroad Co., 74 A.L.R. 153. "Servant is judge of his own strength, and when his injury is caused by overexertion, master is not liable; servant assuming risk, which means that master is not negligent." Lutgen v. Mo. Pac. Ry. Co., 294 S.W. 444. "In such cases the principle precludes a recovery on the theory of assumed risk is especially appropriate for the reason the danger involved seldom, if ever, resides in either the appliance to be used or the work to be performed, but inheres rather in the mode and manner the appliance is used, instead. No one can doubt that in almost every case common labor may be performed in a simple manner and with safety through the use of a simple appliance, even though defective, if only slight discretion is exercised on the part of the person performing the task." Harris v. Railroad, 146 Mo. App. 543. "Or if the risk and danger arising therefrom (negligent act of fellow servant) are so obvious that an ordinarily prudent person, under the same circumstances, would have observed the one and appreciated the other, then an employee assumes the risk arising from the negligent act of a co-employee under the national statute." Chicago & N.W. Ry. Co. v. Bouer, 241 U.S. 470; So. Ry. Co. v. Gray, 241 U.S. 333; Louisville & N. Ry. Co. v. Stewart, 241 U.S. 261; Yazoo & M.V. Ry. Co. v. Wright, 235 U.S. 376; Seaboard Air Line Ry. Co. v. Horton, 235 U.S. 595; Jacobs v. So. Ry. Co., 241 U.S. 229; Chesapeake & O. Ry. Co. v. De Atley, 241 U.S. 310. "An employer is not held to an absolute responsibility for the reasonably safe condition of a place, tools and appliances, but only to the duty of exercising a reasonable care to that end," Baltimore & Ohio S.W. Ry. Co. v. Carroll, 280 U.S. 491. "Assumption of risk is a complete bar to plaintiff's action." Pryor v. Williams, 254 U.S. 43. "The defense of assumption of risk when interposed in an action falling within the purview of the Federal Act is a bar to such action, even though the master has been negligent, if it appears in such action that the negligence of the railroad carrier and the risk arising from such negligence were so obvious that an ordinarily prudent person, under the circumstances in evidence, would have observed and appreciated them." Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492; Jacobs v. So. Ry. Co., 241 U.S. 229; Baugham v. Railroad Co., 241 U.S. 237; So. Pac. Ry. Co. v. Berkshire, 254 U.S. 415.

Neale, Newman & Turner and Haymes & Dickey for respondent.

(1) In considering defendant's peremptory instruction in the nature of a demurrer to plaintiff's evidence, plaintiff must be given the benefit of all evidence in his favor and of all favorable inferences reasonably arising therefrom. Mallory v. La. Pure Ice & Supply Co., 6 S.W. (2d) 617; Beckermann v. Jewelry Co., 157 S.W. 855. (a) Since defendant did not stand on its demurrer at the close of the plaintiff's case, its request that the case be not submitted to the jury must be judged as of the close of the case. Burton v. Holman, 231 S.W. 630; Simpson v. Wells, 237 S.W. 520; Canty v. Halpin, 242 S.W. 94; Melican v. Whitlow Const. Co., 278 S.W. 361; Larkin v. Wells, 278 S.W. 1087; Seewald v. Gentry, 286 S.W. 445; Miller v. Collins, 40 S.W. (2d) 1063; Laudwig v. Central Mo. Power & Lt. Co., 24 S.W. (2d) 625; Shupback v. Meshevsky, 300 S.W. 465. (2) The court ruled properly in refusing defendant's peremptory instruction lettered "B" requested by the defendant at the close of all the evidence. (a) On demurrer plaintiff's evidence will be taken as true. Defendant's evidence, where contradicted, will be taken as untrue and every reasonable and favorable inference of fact will be deduced in favor of plaintiff from his testimony and from the uncontradicted testimony of defendant. Conley v. Motor Car Co., 221 S.W. 165; Simmons v. Kroger Grocery & Bak. Co., 6 S.W. (2d) 1023; State ex rel. Kroger Grocery & Bak. Co. v. Haid, 18 S.W. (2d) 478; Roan v. Wells, 14 S.W. (2d) 488; King v. Spitcaufsky, 28 S.W. (2d) 433. (b) A peremptory instruction will be given only when there is no testimony on some essential element of plaintiff's case or where the facts proven leave no room for ordinary minds to differ as to the conclusion to be drawn. Downing v. Loose-Wiles Biscuit Co., 8 S.W. (2d) 884; Cathy v. St. Louis-S.F. Ry. Co., 130 S.W. 130; Benard State Bank v. Fesler, 89 Mo. App. 216. (c) Even if plaintiff makes only a prima facie case before evidence offered by defendant, be it either documentary evidence or otherwise, before it is sufficient to warrant a directed verdict, it must be undisputed and unimpeached. Shaw v. Am. Ins. Union, 33 S.W. (2d) 1052; Cases cited by defendant. (3) The court did not err in admitting evidence offered on behalf of plaintiff. Schulz v. Ry., 4 S.W. (2d) 762; Morton v. Ry., 20 S.W. (2d) 45. (4) The court did not err in excluding evidence offered on behalf of the defendant. (5) Instruction 1 given by the trial court is not subject to the objections made by defendant but correctly states the law under the pleadings and the evidence. (a) The testimony was ample, first, that plaintiff used the bar in the usual and customary manner; second, to show what the usual and customary manner of using said bar was; third, that plaintiff exerted on said bar the usual and customary strength which it was intended to bear. (b) The instruction does not state a conclusion. The words "in an improper way" appearing therein and italicized by defendant could have been left out and the meaning would have been the same. Schneider v. St. Joseph Ry. Co., etc., 238 S.W. 469; Rogles v. United Rys., 292 S.W. 93; Gallagher v. Lumber Co., 273 S.W. 213; Keith v. American Car & F. Co., 9 S.W. (2d) 644; Wagner v. Ry. Co., 160 Mo. App. 334. (c) Plaintiff testified he took the bar to defendant's blacksmith to be reshaped. Defendant's blacksmith denies this was done. Both plaintiff's witnesses and defendant's witnesses agree that to work on the bar in the manner plaintiff said defendant's blacksmith worked on it would be negligent and that such negligence would render the bar brittle and easy to break. There was no issue on that point; hence, a general instruction as to the negligence involved was proper. Schroeder v. Wells, 298 S.W. 806; Anderson v. Pryor, 209 S.W. 122; Montgomery v. Hammond Packing Co., 217 S.W. 867; St. L. House Furn. Co. v. Stoecker, etc., 238 S.W. 841; Riley v. Independence, 258 Mo. 671; Morris v. Union Depot, 320 Mo. 371; Murphy v. Duerbeck, 19 S.W. (2d) 1040; Anth v. Wells, 285 S.W. 768. (d) But even if the instruction might have been more specifically worded as to the manner or way in which defendant's blacksmith worked on said bar, the error in so wording it would be most technical. Before the appellate court will reverse or remand a case, the error must be material and prejudicial and the burden is on the defendant to prove that it was material and prejudicial. Sec. 1062, R.S. 1929; Schott v. Selden Brick Const. Co., 193 S.W. 959; Leimbach v. United Rys. Co., 227 S.W. 847; Riley v. Independence, 258 Mo. 683; Brice v. Payne, ...