Morgan v. Missouri Pac. Ry. Co.

• Decision Date: 01 March 1909
• Citation: 136 Mo. App. 337,117 S.W. 106
• Parties: MORGAN v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

117 S.W. 106

136 Mo. App. 337

MORGAN v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

March 1, 1909.

Rehearing Denied March 29, 1909.

1. MASTER AND SERVANT (§ 281) — INJURIES TO SERVANT — EVIDENCE — CONTRIBUTORY NEGLIGENCE.

Evidence in an action by a servant for injuries received while working in a pit underneath a locomotive held to show that plaintiff did not voluntarily go into the pit, but went there under the order of defendant's foreman.

2. MASTER AND SERVANT (§ 286) — INJURIES TO SERVANT — QUESTION FOR JURY.

Evidence in an action by a servant for injuries received while working in a pit underneath a locomotive held to present a question for the jury as to whether defendant's foreman was negligent in ordering plaintiff into the pit.

3. MASTER AND SERVANT (§ 102) — INJURIES TO SERVANT — CARE REQUIRED OF MASTER.

It is the duty of a master to exercise reasonable care to provide a servant a reasonably safe place in which to work.

4. MASTER AND SERVANT (§ 137) — INJURIES TO SERVANT — PLACES FOR WORK — LOCOMOTIVES.

Plaintiff, a machinist's helper, while assisting in transposing the tires of the driving wheels on one side of a locomotive, was sent into the pit beneath the locomotive by defendant's foreman to hammer the tire of one of the wheels loose at the bottom of the wheel. When he had detached it from the wheel, the flange of the tire struck the guide yoke which had not been removed, and, instead of falling outward, it slipped backward into the pit, thereby injuring plaintiff. Held, that it was the foreman's duty to have ascertained before ordering plaintiff into the pit whether the tire would fall clear of the guide yoke, and, if it would not, to take proper steps to prevent the tire from sliding into the pit.

5. MASTER AND SERVANT (§ 226) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

A servant only assumes the risks that are incidental to the employment, and not those created by the negligence of his master.

6. MASTER AND SERVANT (§ 238) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE.

If a master orders a servant into a place of danger and the servant is injured, he is not guilty of contributory negligence, unless the danger was so glaring that a reasonably prudent person would not have entered into it.

7. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Where plaintiff is ordered into a pit underneath a locomotive for the purpose of assisting in taking off the tires of the locomotive, and a mere inspection on his part would not have disclosed the fact that the flange of the tire would not clear the guide yoke and for that reason the tire instead of falling on the ground would fall into the pit, the question as to whether plaintiff was negligent in not ascertaining the danger was for the jury.

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

Action by J. M. Morgan against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Roy D. Williams and C. D. Corum, for appellant. George F. Longan, for respondent.

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 defenses offered by the answer were a general denial and pleas of assumed risk, contributory negligence, and that the injury was caused by the negligence of a fellow servant. Verdict and judgment were for plaintiff in the sum of $2,500. Defendant appealed.

First we shall dispose of the contention of defendant that the jury should have been instructed to return a verdict in its favor on the evidence introduced by plaintiff, which is all the evidence in the record. At the time of his injury, August 31, 1906, plaintiff was employed by defendant at its machine shops in Sedalia as a machinist's helper. He was a member of a gang of workmen which was ordered by defendant to transpose the tires of the two driving wheels on one side of a locomotive. The removal of the tires from the wheels was the first thing to be done. To do this, the engine was run onto a track provided with a pit between the rails about three feet deep. The engine then was raised about six inches from the rails by a hoister and held suspended in that position during the operation of removing the wheels. It is charged in the petition, and the evidence tends to show, that the usual method then followed in such cases was to have the wheel carried by an electric crane to trestles provided for the operation of removing the tire. The tire then was heated by means of heat conducted through a tube placed around its periphery. After being sufficiently heated, it was knocked off the wheel. This method was not pursued in the present instance. Instead, the foreman ordered the men to apply the heat and knock off the tires with the wheels remaining on the engine. The tire of the rear wheel was heated, and, in compliance...