Neil v. Pryor

• Decision Date: 22 November 1915
• Docket Number: No. 11737.,11737.
• Citation: 180 S.W. 407
• Parties: NEIL v. PRYOR et al.
• Court: Missouri Court of Appeals

180 S.W. 407

NEIL v. PRYOR et al.

No. 11737.

Kansas City Court of Appeals, Missouri.

November 22, 1915.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Action by Fred Neil against Edward B. Pryor and others. Judgment for plaintiff, and defendants appeal. Reversed.

J. L. Minnis, of St. Louis, J. A. Collet, of Salisbury, and D. G. Phillips, of Moberly, for appellants. Aubrey R. Hammett, of Moberly, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury received while engaged in defendant's service. He recovered judgment in the circuit court.

Plaintiff was working in defendant's machine shops. He alleges in his petition that at the time of his injury he was engaged In "tightening a tap or nut on the under side of the bolster upon a pair of trucks, when the wrench he was using for that purpose turned upon said tap; that is, slipped around the same, and allowed and caused plaintiff to fall," etc. The negligence charged is that defendant furnished plaintiff with an improper wrench, in that "it was worn and too large at the place where it fitted over the nut, and thereby turned or slipped around the nut when plaintiff pushed or pulled against said wrench with sufficient force to turn said tap or nut." Another defect in the wrench was charged to be that it was not long enough, and not provided with an extension so as to perform the work.

The evidence in plaintiff's behalf shows him to be without a legal cause of action. The wrench of which he complains was shaped something like the letter S, with an opening or claws at either end to fit over a nut. It was about 2½ feet long. He had used it every day, and, it being a simple tool, must necessarily have known Its condition. He was not directed to use it in preference to any other like implement, but picked it up as he proceeded to perform the work in question. The end of the bolt on which he was endeavoring to properly place the nut was only about one foot above the floor, and in order to fit the wrench squarely around the nut it was necessary to sit on the floor while doing the work, and that is the way such work ordinarily had been done. But in this instance, the nut, after being started, did not go on easily and required greater effort with the wrench. To exert this effort, plaintiff stood up, in a stooping position. This had the effect to raise the wrench and cause its clamp around the nut to be raised on one side and thus not fit...