Kane v. St. Louis, Kansas City & Colorado Railroad Co.

• Decision Date: 22 May 1905
• Citation: 87 S.W. 571,112 Mo.App. 650
• Parties: IDA KANE, Respondent, v. ST. LOUIS, KANSAS CITY & COLORADO RAILROAD CO., Appellant
• Court: Kansas Court of Appeals

87 S.W. 571

112 Mo.App. 650

IDA KANE, Respondent, v. ST. LOUIS, KANSAS CITY & COLORADO RAILROAD CO., Appellant

Court of Appeals of Missouri, Kansas City

May 22, 1905

Appeal from Osage Circuit Court.--Hon. Wm. A. Davidson, Judge.

REVERSED.

Judgment reversed.

W. F Evans, A. H. Bolte and Frank P. Sebree for appellant.

(1) There was no negligence shown in the order of assistant foreman McLaughlin to deceased to remove the stone. That there was danger in doing the work does not make the order to do it negligence. The danger was an incident in the work itself. The work was of the same character as the men were doing and had been doing for some days; it was work necessary to be done for the completion of the railroad, and was being done in the ordinary and usual way of doing such work. Hence there was no negligence shown. Cunningham v. Journal Co., 95 Mo.App. 47; Holt v. Railroad; 84 Mo.App. 443; Higgins v. Fanning, 195 Pa. St. 599; Shipbuilding Works v. Nuttall, 119 Pa. St. 149; Railroad v. Huntley, 38 Mich. 537; Laflin v Railroad, 106 N.Y. 136; Railroad v. Allen, 78 Ala. 494; Bohn v. Railroad, 106 Mo. 429; Kelly v. Railroad, 105 Mo.App. 365. (2) The risk of performing the kind of work the deceased was engaged in was an ordinary risk and inherent in the work itself. In taking the rock from the sides of any of the cuts the men were liable to lose their balance, and the fact that should they do so and fall they would receive serious injury, made the work more or less dangerous. This being the case, the risk was an ordinary one and was assumed by the persons subjected to it. Harrington v. Railroad, 104 Mo.App. 663; Cothron v. Packing Co., 98 Mo.App. 343; Minnier v. Railroad, 167 Mo. 99; Grattis v. Railroad, 153 Mo. 380; Smith v. Hammond Co., 111 Mo.App. 13; Kleine v. Freunds, 91 Mo.App. 102. (3) The work was of a simple, plain character. All the surroundings and conditions were in plain view. All the risks of danger were obvious to anyone doing the work, especially a trackman who was experienced in that kind of work. For these reasons, also, the deceased assumed the risks. Minnier v. Railroad, 167 Mo. 99; Bradley v. Railroad, 138 Mo. 303; Harff v. Green, 168 Mo. 312; Lucy v. Oil Co., 129 Mo. 40; Holloran v. Iron Co., 133 Mo. 477; Berning v. Medart, 56 Mo.App. 448; Junior v. Light Co., 127 Mo. 83; Marshall v. Press Co., 69 Mo.App. 260. (4) There was no evidence that the work plaintiff was attempting to do, or the conditions surrounding him, caused him to fall. The only witness who saw the accident says that the deceased struck the rock on top instead of prying under it at the bottom, and that the crowbar glanced and deceased thereby lost his balance and fell. As it developed upon plaintiff to prove the accident was the result of negligence, and she having failed to do so, her case must fail. Harrington v. Railroad, 104 Mo.App. 663; Cothron v. Cudahy, 98 Mo.App. 343; Kelley v. Railroad, 105 Mo.App. 365; Hudson v. Railroad, 101 Mo. 13; Norville v. Railroad, 60 Mo.App. 416.

Zevely & Monroe and Silver & Brown for respondent.

(1) The case was properly submitted to the jury on the question of the negligence of defendant's foreman in giving the order to deceased to go down to the rock and "prize it out," the evidence strongly tending to show that the position in which deceased was required to work at said rock was a dangerous and unsafe one. Stephens v. Railroad, 96 Mo. 207-212; Shortel v. St. Joseph, 104 Mo. 114; Schroeder v. Railroad, 108 Mo. 331; Foster v. Railroad, 115 Mo. 165; Zentz v. Chappel, 103 Mo.App. 208; Shortel v. St. Joseph, 104 Mo. 114; Compton v. Railroad, 82 Mo.App. 175; and cases cited; Donohoe v. Railroad, 136 Mo. 657; Stone Co. v. Muscial, 196 Ill. 325; Curtis v. McNair, 173 Mo. 270; Miller v. Railroad, 109 Mo. 350; Steube v. Ry., 85 Mo.App. 640; Cox v. Granite Co., 39 Mo.App. 425; Baird v. Railroad, 146 Mo. 265, (p. 181); Chouteau v. Iron Works, 94 Mo. 355 (pp. 399-400); Heif, etc. v. Lack. Line, 85 Mo.App. 667; Dunn v. Railroad, 21 Mo.App. 188, p. 198; Clemens v. Railroad, 53 Mo. 366; Settle v. Railroad, 127 Mo. 336. It was permissible for plaintiff to waive her right to sue for the maximum sum of five thousand dollars and to sue for two thousand dollars. Marsh v. Railroad, 104 Mo.App. 577; Schroeder v. Railroad, 108 Mo. 332-333.

OPINION

ELLISON, J.

This is an action by plaintiff who is the widow of Frederick Kane who was killed by falling from the side of an embankment while (as plaintiff charges) he was in the employ of defendant as a laborer. The judgment in the trial court was for the plaintiff.

It appears that in constructing its road through Osage county it became necessary to make a deep cut through the earth and rock so as to put the track upon a proper grade. The cut was thirty-five or forty feet deep and the embankment made thereby was, at most places, nearly perpendicular; but at the place from which deceased fell, there was a sort of bench about eight feet below the top and about thirty feet above the bottom of the cut which afforded room for one to stand. Between the bench and the top of the cut a rock protruded out of the side of the cut or embankment and defendant's foreman ordered deceased to go up onto the bench and prize it out. Deceased procured an iron bar or "spud" and went to the place. Instead of prizing under the rock he struck at it overhand, and either missed it or struck it a glancing lick on the top. The misdirected effort thus made caused him to lose his balance and fall to the bottom of the cut, his death being the result.

It appears clear that defendant is not liable. The work which deceased was performing was manifestly done at his risk--a risk he assumed in his engaging in the work. The evidence in no way shows any hidden danger of defect in deceased's surroundings. He could plainly see all that was involved in his effort to loosen the rock. He had a bench, made by the shape of the embankment at that point, upon which to stand and he knew, as anyone must have known, that a misdirected blow would, in all probability, throw him from his position. It is however said by plaintiff that from his place when directed to go and do the work, he could not see and judge of the danger. That may be true, but certainly he could see and know all about it when he got to the place. The fact is, deceased met his death, as appears by the testimony of the only eyewitness, by making a misstroke at the rock instead of prizing under it, as directed. We do not regard the case of Stephens v. Railroad, 96 Mo. 207. That case shows a sudden emergency presented to the injured servant in which he could not have had much time for any other thought than that of doing what he was told. From the position of the deceased in that case, and in the circumstances in which he was placed, it was not apparent to him that the rapidly approaching train would strike him. So of Schroeder v. Railroad, 108 Mo. 322, and other cases cited by plaintiff. They do not apply to the facts of this case. In the case last cited, it is said that the servant assumes all the ordinary risks of his employment. That statement is the one commonly used by judges and text-writers. But it is readily seen that the amount of the risk assumed depends altogether on the nature of the employment. The risk in some employments is so great as to appall the ordinary man, while the risk in other employments is commonplace. A painter accepts employment to paint a flagstaff hundreds of feet from the...