Lowe v. St. Louis & San Francisco Railroad Co.

• Decision Date: 06 July 1915
• Citation: 178 S.W. 442,265 Mo. 587
• Parties: F. M. LOWE, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY
• Court: Missouri Supreme Court

178 S.W. 442

265 Mo. 587

F. M. LOWE, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY

Supreme Court of Missouri, Second Division

July 6, 1915

Appeal from Stone Circuit Court. -- Hon. John T. Moore, Judge.

Affirmed.

Sizer & Kemp for appellant.

(1) Respondent will insist that as the pick was a simple tool the appellant assumed the risk of using same, and will doubtless as in the lower court, rely on the case of Mathis v Stock Yards, 185 Mo. 434, as upholding its contentions. We contend that the Mathis case is not in point in this case for the reason that in the Mathis case there was no objection or complaint made to the use of the plank, as there was in the case at bar to the use of the pick. Where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance. Meyer v. Mfg. Co., 67 Mo.App. 393; Conroy v. Iron Works, 62 Mo. 39; Burkhead v Horse and Mule Co., 221 Mo. 700; Harris v. Railroad, 146 Mo.App. 550. (2) Although the pick was a simple tool yet a review of the cases in Missouri with reference to the pick and maul and claw bar, all simple tools, when being used in and about railroads and tracks, will show that whenever negligence was conceded, admitted or proven, plaintiff has always recovered, when free of contributory negligence. Franklin v. Katy, 97 Mo.App. 473; Browning v. Rock Island, 118 Mo.App. 449; Deckard v. Wabash, 111 Mo.App. 117; Robins v. Mining Co., 105 Mo.App. 78; Blankenship v. Glass Co., 154 Mo.App. 483; Johnson v. Railroad, 96 Mo. 340; Prash v. Railroad, 151 Mo.App. 410; Harris v. Railroad, 146 Mo.App. 524. In the case at bar appellant Lowe was using the pick in the only customary and practical way that such work as he was doing could be done, and hence the method is not his choosing, but is the method of the master prescribed by him and which the servant had to obey.

W. F. Evans and Mann, Johnson & Todd for respondent.

(1) The court's action in sustaining the motion for new trial was proper, because the court ought to have given defendant's demurrer offered at the conclusion of plaintiff's case and renewed at the conclusion of all the evidence. Mathis v. Stock Yards Co., 185 Mo. 434; Blundel v. Mfg. Co., 189 Mo. 552; Meyers v. Glass Co., 129 Mo.App. 556; Christy v. Railroad, 131 Mo.App. 266; Post v. Railroad, 121 Mo.App. 562; Saversnick v. Schwarzchild & Sulzberger Co., 141 Mo.App. 509; Anderson v. Box Co., 103 Mo.App. 382. The servant when he enters the employment of his master assumes not only the risks incident to his employment but all dangers which are apparent and obvious as result thereof. The master is no insurer against all accidents that may overtake or befall the servant in his employ. Nugent v. Milling Co., 131 Mo. 245; Mathis v. Stock Yards Co., 185 Mo. 445. (2) The rule is that where a master has promised to repair and has not done so, the servant can recover for an injury caused thereby only when he relied upon the promise, and if he did rely upon the promise only if he was injured within a reasonable time after the promise was made. Stalzer v. Dold Pkg. Co., 84 Mo.App. 576; LaBatt on Master and Servant, p. 1204, sec. 425, sub-div. "B," citing Steel Co. v. Mann, 40 L. R. A. 781, and Railroad v. Duffield, 47 Am. St. 310. And see also: Andrecisk v. Tube Co., 4 L. R. A. (N. S.) 918; Holloran v. Iron & Foundry Co., 133 Mo. 479; Meyers v. Glass Co., 129 Mo.App. 562.

WALKER, J. Faris, P. J., concurs; Brown, J., not sitting.

OPINION

WALKER, J.

The plaintiff brought this action in the circuit court of Stone county to recover damages for personal injuries alleged to have been received by him while employed as a section hand on defendant's line of railway. Upon a trial there was a verdict for plaintiff in the sum of $ 1000, and a motion for a new trial was sustained, from which order plaintiff appealed to the Springfield Court of Appeals, where the action of the trial court was affirmed. From this judgment Nixon, J., dissented, and on the ground of a conflict with our decisions the case was transferred to this court.

Plaintiff when injured was employed in taking old ties from under defendant's track. In so doing it was necessary to remove the spikes which fastened the ties to the rails, jack up the rails and imbed the point of a pick with which he was working in the tie and pull it from under the rails. In attempting to do this, after one or two unsuccessful efforts, he imbedded the pick in a tie and attempted to pull it out, when the pick suddenly came out of the tie and plaintiff in falling backward received the injuries of which he now complains. The negligence of defendant in failing to have the pick sharpened is relied upon to authorize a recovery, it being contended that if the pick had been properly sharpened it would not have slipped out of the wood and plaintiff would not have fallen.

The evidence shows that at the time of the injury the pick had been in use about two months and had not been sharpened for a week and a half before the injury and was very dull; that it was hard to get a dull pick to stick in the ties; that the boss had promised to have the pick sharpened the morning before the injury, but had not done so. Plaintiff states that he worked practically all the time with a dull pick, as it would grow dull two or three days after sharpening; several times before this the pick had slipped out of the wood but he had not fallen on account thereof; this was the first time that he had fallen by reason of the pick slipping out of the tie. He thought nothing about the pick being dull the morning of the injury. Several witnesses testified that the picks were usually dull, but that the section hands did not quit working on that account.

Was the testimony sufficient to authorize the submission of the case to the jury?

Generally a master is required to use ordinary care in furnishing a servant with safe tools and appliances and in keeping them in a safe condition to perform the labor required; and a servant is required to use ordinary care for his own safety. What constitutes ordinary care in any case depends upon the nature and character of the tools or appliances and the dangers to be encountered in their use. Upon the servant uniformly rests the burden of proving negligence on the part of the master, and a case is not usually made out which will sustain an action for damages by showing the condition of the tool or the appliance and the resultant injury; such a state of facts must be submitted to the jury as will show that at...