Lowe v. St. Louis & S. F. R. Co.

• Citation: 165 Mo. App. 523,148 S.W. 956
• Court: Court of Appeal of Missouri (US)
• Decision Date: 03 June 1912
• Parties: LOWE v. ST. LOUIS & S. F. R. CO.

148 S.W. 956

165 Mo. App. 523

LOWE v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

June 3, 1912.

Rehearing Denied July 9, 1912.

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

A master need only use ordinary care to furnish his servants with reasonably safe appliances, and what is ordinary care depends on the nature and character of the appliances and the danger in their use.

2. MASTER AND SERVANT (§ 265)—INJURY TO SERVANT—DEFECTIVE APPLIANCES—BURDEN OF PROOF.

The burden of proving the negligent failure of a master to furnish reasonably safe appliances rests on the servant suing for an injury caused by the appliances, and mere proof of the condition of the appliances and the resulting injury is not sufficient; but the facts must show that an ordinarily prudent man in the place of the master would have apprehended that the use of the appliances furnished would by reason of their condition probably result in injury to a servant.

3. MASTER AND SERVANT (§ 97)—INJURY TO SERVANT—NEGLIGENCE—EVIDENCE.

A servant engaged in picking out old ties in a railroad was injured in consequence of his pick slipping out of a rail while attempting to pull it out. The pick was so dull that it did not take hold of the rail. It had not been sharpened for a week and a half. A sharp pick was safer than a dull one. The pick had slipped out before without causing injury. The sharpening of the picks was done to facilitate the work in which the servants were engaged. Held, that the master was as a matter of law not guilty of negligence in failing to provide a proper pick, since there was nothing to show that the master should have anticipated injury in case a pick slipped.

4. MASTER AND SERVANT (§ 236)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

The servant was as a matter of law guilty of contributory negligence under the rule that one must use ordinary care for his own safety, and, if there was any reason to apprehend injury by the slipping of the pick, he should have guarded against it.

Nixon, P. J., dissenting.

Appeal from Circuit Court, Stone County; John T. Moore, Judge.

Action by F. M. Lowe against the St. Louis & San Francisco Railroad Company. From an order sustaining a motion for new trial after verdict for plaintiff, he appeals. Affirmed.

Sizer & Kemp, of Monett, for appellant. W. F. Evans, of St. Louis, and Mann, Johnson & Todd, of Springfield, for respondent.

COX, J.

Action for personal injury caused by plaintiff falling while working as a section hand on defendant's track. Judgment for plaintiff for $1,000. Motion for new trial sustained upon the ground that the court erred in not sustaining a demurrer to the testimony, and from the order sustaining the motion for new trial plaintiff has appealed.

The injury came about as follows: Plaintiff was engaged in taking old ties out from under the rails on defendant's track. In doing this the usual course and the one pursued by plaintiff was to take away the ballast from the sides of the ties, then jack up the rails sufficiently to permit the tie to be slipped out, then imbed one end of the pick in the tie by a blow with the pick, and, by pulling on the handle of the pick, pull the tie out from under the rails. On the occasion of this injury, plaintiff attempted to strike his pick into the tie; but the pick was so dull it did not take hold at the first blow. He repeated the blow, and it again failed to catch; but, on striking the third blow, it seemed to have a firm hold, and he began pulling on it "very gradually," when it slipped out, and he fell backward and received the injury of which he complains. The negligence of defendant relied upon for the recovery is its failure to have plaintiff's pick sharpened; the contention of plaintiff being that if the pick had been properly sharpened it would not have slipped out and plaintiff would not have fallen.

Plaintiff testified that he had used the pick nearly two months, and at the time of the injury the pick had not been sharpened for a week and a half and was very dull. He had said to the boss, "How much longer will we have to work with these dull picks?" and the boss said, "They are in bad shape, and as soon as I get time I will have them sharpened." Continuing, plaintiff testified: "This day, when in that condition, it was difficult for a man to work with pick in that shape. Because of it being dull, it was hard to stick in the ties. You could hardly get a dull pick in the ties to stick. The boss had promised to have the picks sharpened the next morning." Q. "Why did you go ahead with the tool in that shape? A. Because of the promise that he would have it fixed the next morning." Further: "I stuck my pick in the tie, and as I went to make my pull I saw the pick was not properly imbedded in the tie, and I taken it out and stuck it in the tie and saw it wouldn't hold again, and the third time I stuck the pick in the tie it seemed to be solid, and I started to pull at it very gradually, and my pick came out, and I fell. * * * I worked practically all the time with a dull pick. It was getting a little duller all the time. It was good and dull practically all the time except the two or three days after sharpening. They would begin to get dull in two or three days. * * * My pick had slipped out various times, but not so as to throw me. I can't say whether it had that day or not, as I paid no attention to that, and don't know as I would to this if I hadn't got the fall. It had slipped before this, but not in the way it did this day. That was the first time I got a fall. It had slipped before, but I say at different times. I never said many. I could not tell how many. Yes, when the pick got dull, it would slip out because you could not imbed it in the tie. I knew the pick was dull and knew it had not been sharpened. I won't say that I knew it was likely to slip, because I never had been hurt before. I did not know it was going to slip with me. I never gave it any thought that morning. I never thought about getting hurt. I can't say I thought about the pick slipping out. I can't say it entered my mind, for I don't know."

Golden Hankins, a witness for plaintiff, testified: "We do not quit when the pick gets dull. We keep on working. We don't get so much done with a dull pick, but I don't know as a fellow is much tireder. It is very difficult to get done what we do. Anybody ought to know when a pick is dull. If you don't stick a sharp pick in, they pull out. Sometimes they will slip out of a creosote tie, not often though; not as often as a dull one. You can hardly put a dull one in one. A sharp one won't pull out if you catch them right."

W. H. Haney, a witness for defendant, testified: "Q. When you say it is customary to take out ties with a dull pick, you don't mean to say that it is a custom generally? A. No, not generally. It is customary that the picks will get dull. They would get dull down there, so much so that I would take the picks home occasionally and sharpen them. Q. If it was the custom to take ties out with dull picks, why did you do that? A. It made it much easier work and didn't cost nothing to keep it sharp. Q. And made it some safer to work with? A. Some safer; yes, sir."

The foregoing covers every material fact in this case. Was it sufficient to send the case to the jury?

There are no difficult legal questions involved in this case. The master is required to use ordinary care to furnish his servants with reasonably safe tools and appliances and must use the same care to keep them in reasonably safe condition, and the servant must use ordinary care for his own safety. The master is not required to furnish tools or appliances that are absolutely safe, but only such as are reasonably safe for the purpose for which they are to be used, and what is ordinary care in a particular case depends upon the nature and character of the tools or appliances and the dangers to be encountered in their use. Franklin v. M., K. & T. R. Co., 97 Mo. App. 473, 71 S. W. 540.

The burden of proving negligence on the part of the master always rests upon the plaintiff, and his case is not always made by showing the condition of the tool or appliances and the resultant injury. To make a case, the plaintiff must present to the jury a state of facts that will show that at the time of the injury an ordinarily prudent man in the place of the master would have apprehended that the use of the tools or appliances furnished would, by reason of their condition, probably result in injury to the servants.

To our mind, the testimony in this case solves every question in it against appellant's contention here. There is an entire absence of any testimony tending to show any duty resting upon defendant to keep plaintiff's pick sharpened in order to prevent his being hurt by using it as it was being used at the time of the injury. The only testimony that could by any possible construction lend any support to appellant's contention is the testimony of witness Haney to the effect that a sharp pick would be a little safer than a dull one. This was, at best, only stating a conclusion; but, if we give it its full force, it is still not sufficient, for the fact that a sharp pick may be a little safer than a dull one does not prove that a dull one is not reasonably safe. A pick is a very simple tool with which every one is familiar, and whether dull or sharp would not ordinarily cause apprehension of danger in its use; but, be that as it may, plaintiff knew all about the pick he was using, knew its condition, knew a dull pick would not stick in a tie like a sharp one, knew it had been slipping out because it was dull, hence must have known that it was likely to slip out at any time, and yet he did not apprehend any danger of getting hurt in case it did slip out, for he says: "I never gave it any thought that morning. I never thought about getting hurt." It had slipped out before and had not hurt him, so...