Miller v. Missouri & Kansas Telephone Company

• Decision Date: 21 February 1910
• Citation: 126 S.W. 187,141 Mo.App. 462
• Parties: LOUIS MILLER, Respondent, v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellant
• Court: Kansas Court of Appeals

126 S.W. 187

141 Mo.App. 462

LOUIS MILLER, Respondent, v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 21, 1910

Appeal from Pettis Circuit Court.--Hon. Louis Hoffman, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

George F. Longan and Gleed, Hunt, Palmer & Gleed for appellants.

(1) Defendant was not negligent. Howard v. Railroad, 173 Mo. 524; Herington v. Railroad, 104 Mo.App. 663. (2) The employer is required to use only reasonable and ordinary care in providing safe appliances and safe places to work. Howard v. Railroad, 173 Mo. 524; Franklin v Railroad, 97 Mo.App. 473. (3) The master is not liable for a defect unless he knew or by the exercise of ordinary diligence should have known, of the defect. Kelley v Railroad, 105 Mo.App. 365; Howard v. Railroad, 173 Mo. 524; Franklin v. Railroad, 97 Mo.App. 473. (4) It was plaintiff's, and not defendant's duty to inspect the pole. Roberts v. Telephone Co., 166 Mo 370; Junior v. Power Co., 127 Mo. 79; Epperson v. Telegraph Co., 155 Mo. 373; Sias v. Light Co., 50 A. 554, 73 Vt. 35; McGorty v. Telegraph Co., 38 A. 359, 69 Conn. 635; Tanner v. Railroad, 62 N.W. 993; Krimmel v. Illuminating Co., 90 N.W. 336; Saxton v. Telegraph Co., 84 N.W. 109, 81 Minn. 314; Broderick v. Railroad, 77 N.W. 28, 74 Minn. 163; Dixon v. Telegraph Co., 68 F. 630; Greene v. Telegraph Co., 72 F. 250; Kellogg v. Tramway Co., 72 P. 609; McIsaac v. Light Co., 51 N.E. 524, 172 Mass. 89; Evansville Co. v. Railey, 76 N.E. 548; Cahill v. Hilton, 13 N.E. (N.Y.) 341; Southwestern Co. v. Tucker, 114 S.W. 790. (5) There was no evidence whatever that the pole was defective. Defendant, therefore, was not negligent. Meehan v. Railroad (Mo. App.), 90 S.W. 102; Goodrich v. Railroad, 152 Mo. 222. (6) Plaintiff had actual knowledge of the danger, if there was any danger, and therefore assumed the risk and was guilty of contributory negligence in so doing. He did not claim that he relied on the inspection and assurance of the foreman, but expressly stated that he appreciated the danger after he had received the assurance. Epperson v. Postal Co., 155 Mo. 346; Whaley v. Coleman, 113 Mo. 598; Knorpp v. Wagner, 195 Mo. 637; Meyers v. Glass Co., 129 Mo.App. 557; Showalter v. Fairbanks, 88 Wis. 376; McCormick Co. v. Liter, 66 S.W. 761; Goza v. Foundry, 142 Mich. 340; Rohrabacher v. Woodward, 124 Mich. 124; Ladonia Oil Co. v. Shaw, 65 S.W. 693; Spencer v. Worthington, 60 N.Y.S. 873; Musser-Sauntry Co. v. Brown, 126 F. 141. (7) The first instruction given by the court and the fourteenth instruction requested by defendant and given by the court, are in direct conflict with each other; and said first instruction is erroneous in that it does not cover the question of assumption of risk. Tabler v. Railroad, 93 Mo. 79; Dale v. Railroad, 63 Mo. 455; Moore v. Mill Co., 55 Mo.App. 491. (8) The sixth instruction given by the court was erroneous in that it permitted the jury in assessing the damages to allow for pecuniary loss in addition to damages for pain and suffering, and there was no evidence of pecuniary loss. Smith v. Railroad, 108 Mo. 243; Pryor v. Railroad, 85 Mo.App. 367; Stoetzle v. Sweringen, 96 Mo.App. 592; Waldopfel v. Transit Co., 102 Mo.App. 524.

W. D. Steele for respondent.

(1) The servant has a right to rely upon the superior knowledge of his foreman, and even though he knew his employment was dangerous, yet it was the duty of the servant to obey the orders of his foreman, and if injured in so doing the master is liable, unless the danger was glaring and imminent. Burkard v. Rope Co., 217 Mo. 466; Brothers v. Carter, 52 Mo. 376; Lewis v. Railroad, 59 Mo. 508; Gormley v. Iron Works, 61 Mo. 496; McGowan v. Railroad, 61 Mo. 532; Keighan v. Kavanaugh, 62 Mo. 232; Cook v. Railroad, 63 Mo. 403; Dowling v. Allen & Co., 74 Mo. 19; Stephens v. Railroad, 86 Mo. 230; Miller v. Railroad, 109 Mo. 357; Russ v. Railroad, 112 Mo. 53; O'Mellia v. Railroad, 115 Mo. 205; Moore v. Railroad, 85 Mo. 595; Cole v. Railroad, 183 Mo. 91; Carter v. Baldwin, 107 Mo.App. 226; Wojtylak v. Coal Co., 188 Mo. 261; Keilty v. Construction Co., 121 Mo.App. 58; Garard v. Coal & Coke Co., 207 Mo. 258; Dodge v. Mfg. Coal & C. Co., 115 Mo.App. 501; Edge v. Railroad, 206 Mo. 417; Bane v. Irwin, 172 Mo. 317; Curtis v. McNair, 173 Mo. 270; Wendler v. House Furnishing Co., 189 Mo. 502; Kielty v. Construction Co., 121 Mo.App. 63; Fogarty v. Transfer Co., 180 Mo. 555; Dodge v. Mfrs. Coal & Coke Co., 115 Mo.App. 508; Koerner v. Car Co., 209 Mo. 157. (2) He is a vice-principal who is entrusted by the master with power to superintend, direct or control the workmen in his work, and that for negligence in such superintendence, direction or control, the master is liable. Hoke v. Railroad, 88 Mo. 360; Smith v. Railroad, 92 Mo. 359; Tabler v. Railroad, 93 Mo. 79; Russ v. Railroad, 112 Mo. 45; LaSalle v. Kosta, 190 Ill. 130; Shortel v. St. Joseph, 104 Mo. 120; Keegan v. Kavanaugh, 62 Mo. 230; Stephen v. Railroad, 96 Mo. 209; Wiley v. Gas Co., 132 Mo.App. 380; Carter v. Baldwin, 107 Mo.App. 318; Hester v. Packing Co., 95 Mo.App. 16; Wiley v. Gas Co., 132 Mo.App. 380.

OPINION

JOHNSON, J.

Action by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the master. The answer, in addition to a general denial, contains the defenses of assumed risk and contributory negligence. Plaintiff prevailed in the trial court where the jury returned a verdict for him in the sum of $ 5000, and the cause is before us on defendant's appeal.

It is argued by counsel for defendant, with much earnestness and ability that the demurrer to the evidence should have been sustained and, first, we shall address ourselves to that argument. The record presents an irreconcilable conflict between plaintiff and the witnesses for defendant over the salient facts of the case, but in the consideration of the questions presented by the demurrer, the settled rules require us to accord absolute verity to plaintiff's version, since we find the evidence adduced by him to be substantial and not inconsistent with physical facts and law.

The injury occurred August 27, 1907, in Sedalia, during the employment of plaintiff as a lineman by defendant, a telephone company. Plaintiff, an experienced lineman, well acquainted with the duties and dangers of that vocation, was injured by the fall of a telephone pole, to the top of which he had climbed in the discharge of duty. The pole was in one of defendant's lines and had been in service a long time. It had become so decayed where it entered the ground that it could not sustain the additional weight of plaintiff's body and fell with him to the ground. Defendant had built new lines in Sedalia and was prosecuting the work of removing the old lines which were known by both parties to this controversy to be in bad repair. The pole which fell with plaintiff belonged to one of these old lines and the gang in which he was working was engaged in the work of removing the wires. Plaintiff knew many of the poles were so decayed and rotten at the base that they would not support the weight of a lineman and was aware of the necessity of an examination of each pole before an attempt was made to climb it; but he contends that in the work of dismantling the old lines, the duty of making such examination devolved upon and was performed by the foremen, and that linemen were not given an opportunity to make a sufficient examination of the condition of the poles to protect their safety, but were compelled to rely on the foremen for knowledge of defects discoverable only by a reasonably thorough inspection. Speaking of the duties of the foremen, plaintiff testified: "They go ahead and inspect the poles to see if they are perfectly safe and see if there are any live wires they have got to contend with, and if they have, they tell all the men to look out for them and examine the poles to see whether they are perfectly safe for them to climb, and then they come back and tell them to go ahead, and then if there are any poles that are dangerous, they either chop them off or don't climb them."

It appears the existence and extent of decay cannot always be known by merely looking at a pole. It must be penetrated or gouged by a sharp instrument, such as an ax or a spur with which linemen are supplied. From the observations plaintiff was able to make, he feared the pole which afterwards fell with him was not safe to climb and expressed his fear to the foreman who had ordered him to climb it. The foreman responded with an order, gruffly and decisively spoken, "Go up there, it is perfectly safe." Plaintiff knew the foreman had inspected the pole and, relying on his judgment and assurance that it was safe, obeyed the command. On the subject of lack of reasonable opportunity allowed him to examine for himself and the compulsion under which he acted, he testified:

"Q. What was there about that pole that Clyde Dunaven (the foreman) knew that you could not have known by making a proper inspection of the same? A. Of course, as assistant foreman he had chances to go along and look at everything and I was so busy working at something else, and I was just rushed up there and forced up that pole, and I couldn't see just what was wrong with it.

"Q. Was there anything about that pole, Mr. Miller, that you couldn't have ascertained by an inspection? A. Well, if they had let me have time and I could have went back on the line both ways and seen the strain on the pole, I probably could have seen it was dangerous; but me being at work and him coming and getting me and forcing me right up the pole, I didn't have time to look at the thing, and he told me to go ahead up the pole,--it...