Lutgen v. Missouri Pac. R. Co.

• Decision Date: 09 May 1927
• Docket Number: (No. 15987.)
• Citation: 294 S.W. 444
• Parties: LUTGEN, v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

294 S.W. 444

LUTGEN, v. MISSOURI PAC. R. CO.

(No. 15987.)

Kansas City Court of Appeals. Missouri.

May 9, 1927.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Action by George Lutgen against the Missouri Pacific Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Paul Barnett and Lawrence Barnett, both of Sedalia, for appellant.

Montgomery, Rucker & Hayes, of Sedalia, for respondent.

BLAND, J.

This is an action for damages for personal injuries. The court sustained a demurrer to plaintiff's petition. Plaintiff declined to plead further, and judgment was entered in favor of the defendant. Plaintiff has appealed.

The material allegations of the petition are as follows:

"On the 26th day of May, 1926, plaintiff was in the employ of defendant, working as a laborer at said shops; that he was engaged with one other employee of the defendant, in carrying certain long, heavy, wooden sills from a place in the yard of said shops to another place where the same were to be used. Said wooden sills were so heavy that it was dangerous for two men to carry and move the same, and the plaintiff complained to the foreman of the defendant, who was in charge of said work, that said sills were too heavy for two men to carry, and he requested that said foreman furnish other men to assist in the moving and carrying of said sills. Whereupon said foreman of the defendant, who was in charge of said work, ordered the plaintiff to continue to move and carry said sills and stated that he would procure other men to assist in said work. Whereupon the plaintiff, pursuant to said order from said foreman, and relying upon the promise to furnish other men, did continue to move and carry said sills, and because of the great weight of said sills the plaintiff was subjected to severe muscular strain, and because of said muscular strain the plaintiff became ruptured and received a hernia on the right side of his abdomen. * * *

"Said order of the defendant's foreman directing the plaintiff to continue with said work was negligent, and plaintiff's said injury was the direct result of defendant's negligence."

It is stated in Hamilton v. St. LouisSan Francisco Ry. Co. (Mo. App.) 279 S. W. 177, 180:

"* * * `When the work requires men to do it, the men engaged therein are classed as appliances,' and the same rule which requires the master to furnish the servant with reasonably safe tools and appliances for doing the work also requires the master to furnish his servant with a sufficient number of employees to enable him to perform his work with reasonable safety."

However, not every injury is actionable that is suffered by an employee by reason of his not having sufficient help. This is made manifest in the case of Hunter v. Busy Bee Candy Co.; 307 Mo. 656, 271 S. W. 800, 803. In that case a list of Missouri cases is contained where the injury to the employee was held to be the proximate cause of the failure of the master to furnish sufficient help. These cases are classed as those where the injury was " * * * the proximate result of negligence on the part of the master in failing to provide necessary help, and which result should reasonably have been foreseen by the master because of his superior knowledge, or was the result of other independent but connected causes, coupled with negligent failure of the master to furnish help in the doing of the work required."

It is well settled that a servant is the judge of his own strength, and when his injury is caused by reason of overexertion, the master is not liable. This holding is based upon the theory that the servant assumes the risk of injury under the circumstances. Haviland v. K. C., P. & G. Rd. Co., 172 Mo. 106, 112, 117, 72 S. W. 515; Leitner v. Grieb, 104 Mo. App. 173, 176, 77 S. W. 764; Petrilli v. Swift & Co., 216 Mo. App. 626, 260 S. W. 516; Hunter v. Busy Bee Candy Co., supra. In Missouri when we speak of a servant assuming the risk we mean that the master is not negligent. Patrum v. Rd. Co., 259 Mo. 109, 121, 168 S. W. 622. To state the matter in a different way: The master may leave to the...