Neely v. Chicago Great Western R. Co.

• Decision Date: 23 January 1928
• Docket Number: No. 16198.,16198.
• Citation: 14 S.W.2d 972
• Parties: NEELY v. CHICAGO GREAT WESTERN R. CO. et al.
• Court: Missouri Court of Appeals

14 S.W.2d 972

NEELY v. CHICAGO GREAT WESTERN R. CO. et al.

No. 16198.

Kansas City Court of Appeals. Missouri.

January 23, 1928.

Rehearing Denied February 13, 1928.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by William Neely against the Chicago Great Western Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Certiorari quashed 14 S.W.(2d) 978.

Roy B. Thomson, of Kansas City, for appellants.

Atwood, Wickersham, Hill & Chilcott, of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000.00 and defendants have appealed.

The facts show that plaintiff was injured on the 17th day of October, 1924, by the falling of a railroad car wheel upon his leg while he was in the employ of the defendant railroad company as a common laborer at its shops in Kansas City, Missouri. Carloads of metal freight car wheels were received at this shop in box cars from time to time and it was plaintiff's duty to assist in unloading these wheels. The wheels were about 32 inches in diameter, weighed 750 pounds and had holes in their center for the insertion of a journal or axle. These holes were about 8 inches deep through the hub, with a diameter from 6½ to 7 inches; the wheels came from the foundry and the holes for the axles were more or less roughly bored. The wheels were conveyed to the shops of the defendant railroad company for the purpose of having them bored or drilled out so that they would fit the journals or axles. Some of the wheels in the car would be down flat, or nearly so, upon the floor of the car, in which case it would be necessary to raise them up on end in order to roll them out of the car and onto the platform at the shop. Defendant railroad company for the purpose of raising the wheels furnished plaintiff and his co-laborers with a gas or water pipe about 1½ inches in diameter and from 6½ to 7 feet long. This pipe would be inserted in the hole in the center of the wheel and two men would bear down upon the pipe, raising the wheel up to nearly a perpendicular position when one of the men would take hold of the wheel from the opposite side and roll it out of the door of the car. The work was being done under the immediate direction and supervision of the defendant, Morris, who was and had been at all times the foreman of the defendant railroad company in the doing of the work and was always present when wheels were removed.

Plaintiff's testimony tended to show that the pipe was the only tool furnished by defendant railroad company for the doing of the work and was used by him in compliance with the suggestion of Morris. The pipe being iron and smooth and working against iron, frequently slipped in the hole when the car wheels were being raised prior to plaintiff's injury and at least on one occasion another employee came very near being hurt by a wheel slipping off the pipe and falling. At the time plaintiff was injured, two employees, Nemecek and Jones, had placed one end of the pipe in the journal hole of one of the wheels that was lying flat or nearly so on the floor near the door and within six inches of the side of the car. They had raised the wheel in the usual manner, their end of the pipe having been brought to the floor of the car. Plaintiff, whose duty it was to grasp the wheel after it was raised and roll it from the car, stepped into a position, with one foot between the wheel and the side of the car, to receive the wheel but before he could grasp the wheel the pipe slipped and the wheel fell and caught his leg, breaking the same below the knee.

At the time of the removal of the wheel in question from the car, Morris was checking the number on the wheels before they left the car and stood in the car within a few feet of plaintiff. The evidence shows that plaintiff and other employees of defendant railroad had often complained to Morris of the danger connected with the use of the iron pipe and requested that a "wheel stick" be furnished for the use of the laborers and that Morris had promised to provide such a stick. The evidence shows that a "wheel stick" is a stick customarily used in work of this kind and consists of a wooden pole or stick about 6 feet long that fits snugly into the journal hole in the wheel. Plaintiff testified that such a stick "is made pretty near to fit in the journal hole" and that it tapers down at the end where it is handled by the laborers. The inference to be drawn from the testimony is that a pole that fits snugly into the hole in the wheel is less likely to slip than one fitting loosely. Plaintiff testified that he told Morris at one time that the iron pipe "was too small for the hole in the wheel"; that he asked Morris "three or four different times * * * didn't he think the pipe was dangerous" and that Morris admitted that it was and said to plaintiff, "You boys be careful and I will get you a stick as soon as I can." Morris said that he had seen wheels slip off the iron pipe on several occasions and remarked, "I am going to try to get sticks for the next car." One of plaintiff's witnesses testified that, "We never unloaded a car but what those wheels didn't slip out."

According to defendants' evdence there were a number of wheel sticks in the wheel shop adjacent to the platform upon which the car wheels were being loaded and these sticks were of wood, about 5 or 6 feet long and about 3 inches in diameter. Morris, testifying for defendants, stated that a wheel stick of this character was in the car for the use of the laborers, if they saw fit, at the time plaintiff was hurt. Plaintiff denied this. The evidence shows that plaintiff was a man of mature age and was familiar with the work in question, having been engaged in it for a long time prior to his injury.

Defendants insist that their instruction in the nature of a demurrer to the evidence should have been given. In this connection they argue that the iron pipe in question was a simple tool, attempting to rely upon their construction of the simple tool doctrine. This case does not involve the question of a master furnishing a servant a defective tool, simple in its nature, but the facts show that the tool furnished, while not inherently defective, was unfit for the work that was to be performed with it. While the iron pipe itself was simple enough, its use in connection with the raising of the wheel was more or less complicated and we do not think that the simple tool doctrine has any application. However, that doctrine has undergone considerable explanation in recent years and it is now well established that the master is required to use ordinary care to furnish the servant with such tools and appliances as may be reasonably required for the reasonably safe prosecution of the work, and that this rule extends to simple tools as well as to complicated ones. As in other cases, the question to be determined is whether the master could have reasonably anticipated that the servant would be injured by a defective simple tool furnished. It is now established that the simple tool doctrine merely comes into play in connection with the question of contributory negligence. Williams v. Pryor, 272 Mo. 613, 200 S. W. 53; Beck v. Galloway Peas Lumber Co., 210 Mo. App. 341, 239 S. W. 166. In the case of Williams v. Pryor, supra, loc. cit. 625, 626 of 272 Mo. (200 S. W. 56), the Supreme Court said: "It is negligence for a master to furnish a tool which is not reasonably safe to be used on the work, and we care not what the character of the tool, in so far as the negligence of the master is concerned. * * * The so-called simple-tool doctrine, what is there to be found in it? In its last analysis it is nothing more than that of contributory negligence. * * * If the servant * * * sues the master for the master's neglect in furnishing an unsafe tool, the master may respond and say the tool was a simple device, and any ordinary person could have seen and known the defects thereof, and in using it in that condition you have been guilty of negligence which contributed to your injury, and you cannot recover. To my mind that is all there is in the so-called simple-tool doctrine in states like Missouri, where we have fixed views upon assumed risk. You can show the simple character of the tool, and the obviousness of the defects, to show contributory negligence." See, also, Allen v. Mo. Pac. Rd. Co. (Mo. Sup.) 294 S. W. 80, 85. We have examined the case of Lowe v. Rd., 265 Mo. 587 178 S. W. 442, and older cases cited by defendants and find them either not in point or contrary to Williams v. Pryor, supra.

It is insisted that the master is not required to furnish the newest or best tools to his servant and that there is no evidence that the iron pipe was not a reasonably safe tool for the work for which it was used. Clearly there is no merit in the contention that the tool, as a matter of law, was reasonably safe. The evidence shows that it had slipped many times and at one time as a result of its slipping a wheel came very near to falling upon an employee. It was admitted to have been dangerous by defendant, Morris. Certainly whether it was a reasonably safe tool was a question for the jury.

It is claimed that plaintiff was guilty of contributory negligence as a matter of law but there is no merit in this contention. While he testified that he thought the method of raising the wheels by the use of the iron pipe was very dangerous, his thinking so did not constitute contributory negligence on his part as a matter of law. There was a promise to remedy the situation in this case and under such circumstances it was not sufficient that the servant knew the work to be dangerous. He could continue in the work without being convicted of contributory negligence as a matter of law if the danger and risk were not so obvious, glaring and imminent...