Harris v. Kansas City Southern Ry. Co.

• Decision Date: 31 May 1913
• Citation: 157 S.W. 564
• Parties: HARRIS v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

157 S.W. 564

HARRIS v. KANSAS CITY SOUTHERN RY. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. MASTER AND SERVANT (§§ 101, 102) — SAFE APPLIANCES.

A master must furnish a servant with reasonably safe tools and appliances with which to work.

2. APPEAL AND ERROR (§ 1039) — PLEADING — CONTRIBUTORY NEGLIGENCE.

Where plaintiff's proof shows his contributory negligence, the character of defendant's pleading is immaterial.

3. MASTER AND SERVANT (§ 281) — INJURY TO SERVANT — ACTIONS — CONTRIBUTORY NEGLIGENCE.

In an action by a servant, injured in pulling spikes from railroad ties, evidence held to show that the servant's contributory negligence was the proximate cause of the injury.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by Samuel Harris against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appealed to the St. Louis Court of Appeals, which reversed the judgment on a majority opinion, and the cause thereafter was duly certified to the Supreme Court. Reversed.

Cyrus Crane, of Kansas City, Mo., and O. L. Cravens, of Neosho, for appellant. Benton & Ruark, of Neosho, for respondent.

GRAVES, J.

Plaintiff, once a section man in the employ of defendant, sues for damages in the sum of $4,000 for injuries alleged to have been sustained by him, whilst in defendant's service, by reason of having had furnished to him a defective clawbar with which to pull spikes from railroad ties. He recovered by the verdict of a jury $500, and from a judgment upon such verdict the defendant appealed to the St. Louis Court of Appeals, where by the majority opinion the judgment was reversed (146 Mo. App. 524, 124 S. W. 576); but by a dissenting opinion the cause was duly certified to this court for determination. Negligence is thus charged in the petition: "That as plaintiff's employer, it was defendant's duty to furnish plaintiff with good and reasonably safe tools with which to perform his work. That the defendant, wholly disregarding its duty in that behalf, furnished to plaintiff a clawbar which was old, worn, bent, and out of repair, and the claws of said bar sprung and spread apart, so that the claws of said bar would not hold upon a spike when in use, which said fact was well known to defendant, but was unknown to plaintiff and could not have been discovered by the exercise of due care on his part. That while plaintiff, in the performance of his duty, was engaged in the performance of his duties, and using the said defective clawbar, the plaintiff placed the claws of the said bar under a spike and threw his weight upon the bar so as to draw or remove the spike. That the claws of the said defective clawbar, on account of the bent, worn, and old condition and being out of repair, slipped off the said spike, thereby throwing plaintiff violently to the ground, where his knee came in violent contact with another spike or piece of iron, whereby his knee was greatly bruised or injured." The material portion of the answer, after a general denial, reads: "Further answering, defendant says that plaintiff's injuries, if any, were caused solely by, and are due directly to, his own carelessness and negligence and that of his coemployés, all directly contributing thereto; and that the injuries, if any, to the plaintiff, were due to risks assumed by plaintiff in his employment and work for defendant." We find no reply in the abstract of record; but this is immaterial, as the case proceeded below as if one had been filed.

Plaintiff in his testimony says that he was a farmer, 30 years old, and had lived all his life near Tipton Ford, a point on defendant's railroad; that he had worked on the "extra gang" for a few days at a time previous to his last employment by the defendant; that he had been working on the section some four or five days, when the foreman gave him a clawbar, and put him and one Morris to pulling spikes from some ties which had been piled up along the railroad; that this was on November 21, 1906; that he had no experience in the use of clawbars; that the foreman had never told him about the bar given to him; that the clawbar was "all worn out between the forks and would not pull"; that Morris drove the claws of the bar under the spike's head with a hammer or maul, and that both of them would then bear down on the handle of the bar to pull the spike; that this was done each time until the time he was hurt; that the clawbar would slip off three or four times in pulling each spike; that, when he was hurt, Morris had driven the claws under the spike, and he then without Morris' assistance attempted to pull the spike; that in so doing he threw his whole weight upon the bar, and when it slipped, as it had done every time theretofore, he was thrown down and struck his knee upon the head of a spike, and thus received the injury to the knee complained of in this action. On his cross-examination he thus describes the situation: "Q. How many spikes did you pull before this accident? A. I think about ten, I guess. Q. Did it slip out any other time? A. Yes, sir; four or five times on every spike. Q. Four or five times before that? A. On every spike. Q. Slipped on every spike? A. Yes, sir. Q. Did you see this other man working with this bar before you got it? A. Which man? Q. Joe Morris. A. We was both working there together. Q. Did you work with this clawbar? A. No, sir; generally always drove it up with a hammer. Q. Was he driving it up at the time you was injured? A. Yes, sir; h...