Miller v. Missouri Pacific Railway Company
| Decision Date | 05 January 1914 |
| Citation | 162 S.W. 290,175 Mo.App. 349 |
| Parties | JOHN MILLER, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.
REVERSED.
Judgment reversed.
Robert T. Railey and Ben J. Woodson for appellant.
Thompson Griswold & Thompson for respondent.
Plaintiff was engaged in defendant's service as a section hand and received injuries which, attributing to defendant's negligence, he instituted this action for the resulting damage. He recovered judgment in the circuit court.
Defendant insists that no case was made for the jury and that error was committed in refusing its demurrer to the evidence. The following are the undisputed facts bearing on the question. The work defendant had its section men to do consisted, among other things of drawing out old nails or railroad spikes from the ties, replacing old ties with new ones and spiking the rails back to the new ties with the old nails. On the day of his injury plaintiff was driving a spike into a tie when it flew out and struck him on the leg, inflicting the injury of which he complains. The heads of the nails by reason of oil dripping from cars had become partly covered with a coating of grease. They were spoken of by witnesses as "grease heads." The hammer, or maul, with which these were driven was a large metal one, the end or striking surface, called the face, was near to an inch and a half in diameter. The hammer used by plaintiff and the two or three others, used by other workmen had been in service several years and the sides or edges of their faces had become chipped and more or less defective.
Plaintiff was a section man of long experience. He had been engaged in this work for defendant eleven years or more. He had full and complete knowledge of the work and the implements he used. The hammer became battered by long service in his hands. The old spikes driven into the new ties, were selected by himself. Long service and experience had shown him all the risk there was in working with such a hammer on such spikes. It is not pretended that he had to drive any particular spike, nor that any of a number were selected for him. He repeatedly stated in testimony that he selected them himself. He however did testify that twice in his service he had told the foreman, in effect, that these implements were not in proper condition. One of these occasions was the morning he was hurt when he said to him that he "did not believe we could drive those greased heads with those hammers," and the foreman replied, "You will have to, that is all we have got; all the hammers we have got." He had driven two or three dozen when he picked up one that he said was "crooked and battered" and "struck it a glancing lick," when it flew out and hit his leg. On being recalled he repeated a second time, that the reason this spike struck him was "because of the way it was battered up and...
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