Gray v. Doe Run Lead Co.

• Decision Date: 24 October 1932
• Docket Number: No. 30453.,30453.
• Parties: GILBERT GRAY v. DOE RUN LEAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

53 S.W.2d 877

GILBERT GRAY v. DOE RUN LEAD COMPANY, a Corporation, Appellant.

No. 30453.

Supreme Court of Missouri, Division One.

October 24, 1932.

Appeal from Jefferson Circuit Court. — Hon. E.M. Dearing, Judge.

AFFIRMED.

Parkhurst Sleeth and Terry & Terry for appellant.

(1) The master is not bound to furnish the servant with the best or safest appliances. All that is required of him is to use reasonable care to furnish reasonably safe instruments or appliances and, therefore, the courts have held that the defendant is not negligent in furnishing: (a) A dull pick instead of a sharper one, although a sharp pick might be safer. (b) That the master is not negligent in furnishing a tight oar lock, although a "U" oar lock might be safer. (c) In furnishing unannealed wire when annealed wire might be safer. (d) In failing to furnish skid chains for an automobile or truck where skid chains might be safer. (e) As in the case at bar, the plaintiff only claims that the defendant furnished an old hammer instead of a new one. Lowe v. Railroad, 265 Mo. 592; Chrismer v. Telephone Co., 194 Mo. 209; Fogel Construction Co. v. Trimble, 274 S.W. 1030; Samuel v. Natl. Bag Co., 15 S.W. (2d) 378. That the rule that a master must exercise reasonable care to provide reasonably safe appliances for his servants does not apply where the appliances are of simple nature, in which any defects can be readily observed by the servant. Lowe v. Railroad, 265 Mo. 592; Samuel v. Natl. Bag Co., 15 S.W. (2d) 378; Fogel Construction Co. v. Trimble, 274 S.W. 1030; Tashman v. Republic Metal Co., 285 S.W. 110; Kellerman v. Telephone Co., 189 Mo. App. 512. The master is not liable for the consequences of danger, but only of negligence. Brands v. St. Louis Car Co., 213 Mo. 708; Chrismer v. Bell Tel. Co., 194 Mo. 209; Smith v. Light & Power Co., 148 Mo. App. 586; Thompson v. Railroad, 274 S.W. 532; Hulse v. Telephone Co., 164 Mo. App. 131; Kellerman v. Telephone Co., 189 Mo. App. 512. An employer is not negligent where the servant is apprised of the peril, or, where it is obviously known and appreciated. Lowe v. Railroad, 265 Mo. 592; Heron v. Himmelberger-Harrison Lumber Co., 230 S.W. 662; Stegmann v. Gerber, 146 Mo. App. 117; Clark v. Wheelock, 293 S.W. 459; Clift v. Frisco Railroad Co., 9 S.W. (2d) 976; Watson v. Carthage Marble & White Lime Co., 290 S.W. 651; Morris v. Pryor, 272 Mo. 364; Bowman v. Foundry Co., 226 Mo. 53. (2) The court erred in refusing to give an instruction in the nature of a demurrer offered by defendant at the close of plaintiff's case, and renewed at the close of the whole case, for the following reasons: (a) That under the evidence defendant was not shown to be guilty of any act of negligence. The master is not liable for the consequences of danger, but only of negligence. Lowe v. Railroad, 265 Mo. 592; Thompson v. Railroad, 274 S.W. 532; Brands v. St. Louis Car Co., 213 Mo. 708; Hulse v. Telephone Co., 164 Mo. App. 131; Kellerman v. Telephone Co., 189 Mo. App. 512; Knorpp v. Wagner, 195 Mo. 664; Livengood v. Lead & Zinc Co., 179 Mo. 242; Chrismer v. Telephone Co., 194 Mo. 208; Smith v. Light & Power Co., 148 Mo. App. 585; Miller v. Railroad, 175 Mo. App. 352; Lee v. Gas Co., 91 Mo. App. 619; Glasscock v. Dry Goods Co., 106 Mo. App. 664; Heron v. Himmelberger-Harrison Lumber Co., 230 S.W. 661. (b) The plaintiff was a railroad of experience; he knew a good hammer or a good gad as well as the master. A miner knows a sledge hammer as well as the master. The master is not compelled to be either constructively or actively present so that the railroader will not hurt himself with a hammer. He may trust the railroader to select a hammer suitable to drive a gad from a number of hammers, for when he hires a railroader, he is presumed to hire not only the bodily services of the servant (his hands, eyes, ears, muscles and legs), but the skill and knowledge pertaining to the servant's art or trade and possessed by the latter. Probst v. Heisinger Motor Co., 16 S.W. (2d) 1006; Katherine King v. Terry, 14 S.W. (2d) 969; Trainer v. Mining Co., 243 Mo. 359; Watson v. Carthage Marble Co., 290 S.W. 649; Humphrey v. Lusk, 196 Mo. App. 446; Forbes v. Dunnavant, 198 Mo. 209; Knorpp v. Wagner, 195 Mo. 664; Modlagl v. Iron & Foundry Co., 248 Mo. 599; Hulse v. Telephone Co., 164 Mo. 131. (c) Where the evidence tends to prove two or more causes of injury, one of which defendant is liable for and one or more of which he is not liable for, plaintiff must fail in the absence of a showing that his injury came from the former. Thompson v. Railroad, 270 Mo. 96; Glasscock v. Dry Goods Co., 106 Mo. App. 663. (d) If one in the course of his employment is aware of the master's mode of doing business and continues without protest to or promise from the master he assumes the risk and the master is not guilty of negligence. Powers v. Loose-Wiles Co., 195 Mo. App. 433; Patrum v. Railroad, 259 Mo. 121; Czernicke v. Ehrlich, 212 Mo. 395; Heron v. Himmelberger-Harrison Lumber Co., 230 S.W. 661; Porter v. Titusville Fruit & Farm Lands Co., 238 Fed. 761; Morris v. Pryor, 272 Mo. 364; Clift v. Frisco Railroad Co., 9 S.W. (2d) 972. (3) It assumes that the hammer was furnished by the defendant. There was no evidence that the hammer was furnished by the defendant for the purpose of driving a gad. For the reason that it assumes negligence on behalf of the defendant when the law requires it to be pleaded and proved. Allen v. Railroad, 294 S.W. 87; Yarde v. Hines, 209 Mo. App. 554; Robertson v. Wabash Railroad Co., 152 Mo. 390; Huffit v. Railroad, 222 Mo. 305; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Modlagl v. Foundry Co., 248 Mo. 599; McMurray v. Railroad, 282 Mo. 685; Schulz v. Smercina, 318 Mo. 501. (4) Instruction 2, given on behalf of the plaintiff, is erroneous for the reason that it refers to the amended petition of plaintiff to ascertain what injuries plaintiff complains of. The court should tell the jury what the issues are and not refer the jury to the pleadings to determine the issues, for the reason that the jury does not have the pleadings before it, and is not likely to understand what the pleadings contain. Dietderick v. Mo. Iron & Metal Co., 9 S.W. (2d) 829, 222 Mo. App. 748; Stufflebean v. Peaveler, 274 S.W. 930; Elders v. Mo. Pac. Railroad Co., 280 S.W. 1050; Sinnamon v. Moore, 161 Mo. App. 177; Malinda Brambrick v. Brambrick Const. Co., 152 Mo. App. 78. (5) Instruction 5 is erroneous for the reason that it does not confine the jury to determining the injuries suffered by plaintiff by reason of the lick of the hammer, but is a roving commission giving the jury the right to award him pay for injuries suffered since the injury, and allows them to compensate plaintiff for all injuries sustained, and does not restrict the jury to the injuries inflicted by the hammer. Second, it conflicts with instructions given on behalf of the defendant, is ambiguous and its meaning is not clear. Stevenson v. Hancock, 72 Mo. 614; Martinowsky v. City of Hannibal, 35 Mo. App. 76; Neff v. City of Cameron, 213 Mo. 366. (6) Instruction 6 is erroneous because: (a) it is a comment on the evidence, usurps the province of the jury and does not properly define the furnishing of the sledge hammer. Hackman v. McGuire, 20 Mo. App. 289; State v. Adkins, 284 Mo. 687; State v. Edelen, 288 Mo. 160; State v. Rogers, 253 Mo. 413; Neff v. Cameron, 213 Mo. 364. (7) Instruction 7, given on behalf of the plaintiff, is erroneous for the reason that it refers to the amended petition of plaintiff to ascertain what injuries plaintiff complains of. The court should tell the jury what the issues are, and not refer the jury to the pleadings to determine the issues, for the reason that the jury does not have the pleadings before it, and is not likely to understand what the pleadings contain. It conflicts with instructions given for defendant, is ambiguous and its meaning is not clear. Priestly v. Laederich, 2 S.W. (2d) 633; Dietdrick v. Mo. Iron & Metal Co., 9 S.W. (2d) 829, 222 Mo. App. 748; Malinda Brambrick v. Brambrick Const. Co., 152 Mo. App. 78; Stufflebean v. Peaveler, 274 S.W. 930; Elders v. Mo. Pac. Railroad Co., 280 S.W. 1050; Sinnamon v. Moore, 161 Mo. App. 177; Neff v. City of Cameron, 213 Mo. 365. (8) Both the verdict of the jury and the amount of judgment after the remittitur are excessive. Neff v. City of Cameron, 213 Mo. 366; Degan v. Jewell, 239 S.W. 66; Meeker v. Union Electric L. & P. Co., 216 S.W. 933.

C.O. Inman and Hensley, Allen & Marsalek for respondent.

(1) The simple-tool rule does not apply under the facts pleaded. Williams v. Pryor, 272 Mo. 625; State ex rel. Casting Co. v. Reynolds, 200 S.W. 57; Neely v. Railroad, 14 S.W. (2d) 972. It does not appear from the petition that plaintiff was apprised of the peril, or that it was obvious. Under such circumstances contributory negligence is an affirmative defense which must be raised by answer to be available. Martin v. Coal Co., 288 Mo. 253; Eaton v. Wallace, 287 S.W. 614. (2) The demurrer to the evidence was properly overruled. (a) Since the evidence showed, without contradiction, that a hammer with a worn and rounded face was likely to glance, it was for the jury to say whether the selection and use of such a hammer for the work in question was an act of negligence. Authorities, Point 1, supra. (b) Whether the defective condition of the hammer caused it to glance and strike plaintiff was a question of inference for the jury. The evidence showed that a hammer with a worn and rounded face was likely to glance off when used to strike a gad, and there was no evidence whatever that the injury occurred in any other manner. Huhn v. Ruprecht, 2 S.W. (2d) 760; Blakenship v. Glass Co., 154 Mo. App. 490; Duerst v. Stamping Co., 163 Mo. 622; Brainard v. Railroad, 5 S.W. (2d) 17; Peters v. Hoover & Allison Co., 281 S.W. 73; Natt v. Aiken, 212 S.W. 58; Jaquith v. Plumb, 254 S.W. 89. (c) Where plaintiff's evidence supports a...