Pauck v. St. Louis Dressed Beef & Provision Company

• Decision Date: 25 January 1901
• Parties: PAUCK, Appellant, v. ST. LOUIS DRESSED BEEF & PROVISION COMPANY
• Court: Missouri Supreme Court

61 S.W. 806

159 Mo. 467

PAUCK, Appellant, v. ST. LOUIS DRESSED BEEF & PROVISION COMPANY

Supreme Court of Missouri

January 25, 1901 ^[*]

Appeal from the St. Louis City Circuit Court. -- Hon. Horatio D Wood, Judge.

Reversed and remanded.

Taylor & Taylor and Johnson, Houts, Marlatt & Hawes for appellant.

(1) Plaintiff's right of action was not, as a matter of law barred by any "assumption of risk" on his part by reason of his having remained in the employ of the defendant after he had some reason to know that the switching apparatus was defective, especially in view of the repairs made by the master; and the question of his contributory negligence in so doing was, under the circumstances in this case, for the jury to determine. This is the point upon which this case turns. (a) The danger was from defective appliances. It was not therefore one naturally incident to plaintiff's employment, and was not assumed by plaintiff when he entered the employment. Henry v. Railroad, 109 Mo. 493; Nicholls v. Glass Co., 126 Mo. 66; Bender v Railroad, 137 Mo. 250. (b) The contention that plaintiff "assumed" the risk of danger from these defective appliances, must rest either upon (1) a contract to assume the risk, or (2) by reason of the application of the maxim "volenti non fit injuria." (2) There can be no contractual assumption of risk by the servant of danger arising from the negligence of the master in providing unsafe or defective applicances. Blanton v. Dold, 109 Mo. 75; Settle v. Railroad, 127 Mo. 343; Railroad v. Norment, 84 Va. 167; 1 Bailey on Personal Injuries, par. 469; Reporters Note, 49 L. R. A. l. c. 62. The law should not and will not, on the ground of public policy, permit or uphold such a contract. Settle v. Railroad, 127 Mo. 343; Blanton v. Dold, 109 Mo., supra; Roesner v. Hermann, 10 Biss. 486; Railroad v. Spangler, 44 Ohio St. 471; Railroad v. Eubanks, 44 Ark. 460; Railroad v. Jones, 2 Head (Tenn.), 517; Railroad v. Orr, 91 Ala. 554; Hissong v. Railroad, 91 Ala. 514; Coal Co. v. Peterson, 39 Ill.App. 514. Railroads are not allowed to contract against their negligence. Why should employees be allowed to make such contracts? Beach on Modern Law of Contract, 1502; Kellerman v. Railroad, 34 S.W. 41. (3) If the maxim of "volenti non fit injuria" is sought to be applied, it is a question of fact, whether the plaintiff fully understood and appreciated his danger; and further whether he was volens. Continuance in service, with knowledge of the danger, can not, as a matter of law (except in the clearest cases) establish the volens and defeat recovery. The question is a question of fact for the jury. Fitzgerald v. Paper Co., 155 Mass. 156; Mahoney v. Dore, 155 Mass. 513; Smith v. Baker, 60 L. J., Q. B. D. 689; Williams v. Birmingham, 68 L. J., Q. B. D. 920; Sword v. Cannon, 1 Sessions Cases (2d series), 499; Yarmouth v. France, 57 L. J., Q. B. D. 7 loc. cit. 11; Brooke v. Ramsden, 63 L. T. (N. S.), 287; Osborne v. Railroad, 57 L. J., Q. B. (N. S.), 618. (4) The question is whether continuing in service after knowledge of danger from defective appliances will defeat plaintiff's action -- under the Missouri decisions; and, in reason, is properly a question of contributory negligence: and is a question of fact for the jury under all the circumstances. Blanton v. Dold, supra; Settle v. Railroad, 127 Mo. 343; Hamilton v. Mining Co., 108 Mo. 376; O'Mellia v. Railroad, 115 Mo. 205; Huhn v. Railroad, 92 Mo. 440; Thorpe v. Railroad, 89 Mo. 660; Patterson v. Railroad, 76 Pa. St. 389; Snow v. Railroad, 8 Allen (Mass.), 441; Dwyer v. Railroad, 52 F. 89; Martin v. Railroad, 94 Cal. 331; Shearman & Redfield on Negligence (5 Ed.), par. 211; Railroad v. Mares, 123 U.S. 710; Epperson v. Telegraph Co., 155 Mo. 335; Bailey on Personal Injuries, 469, 470; Reporters Note, 49 L. R. A. 33, loc. cit. 62; Clark v. Holmes, 7 H. & N. 944. (5) Plaintiff's knowledge of the defective appliance would not defeat his recovery if it was not so glaring as to threaten immediate injury, or if he might have reasonably supposed that he could safely work about it by the use of care and caution. The court can not declare as a matter of law, that the plaintiff was contributorily negligent unless the defect was so manifestly and glaringly hazardous that no prudent man of the same class would remain in the service. Huhn v. Railroad, 92 Mo. 440; Hamilton v. Mining Co., 108 Mo. 376; Stoddard v. Railroad, 65 Mo. 514; Devlin v. Railroad, 87 Mo. 545; Snow v. Railroad, 8 Allen (Mass.), 441; Patterson v. Railroad, 76 Pa. St. 389; Smedley v. Railroad, 118 Mo. 278; Mahaney v. Railroad, 108 Mo. 191; O'Mellia v. Railroad, 115 Mo. 221; Railroad v. Mares, 123 U.S. 710; Epperson v. Telegraph Co., 155 Mo. 335.

O'Neill Ryan for respondent.

(1) This was an action based on negligence, the charge being that the master knowingly furnished defective appliances to the servant. The petition failed to state a cause of action in this -- it failed to allege that the danger and defect were not known to the plaintiff. It was therefore fatally defective and the demurrer was properly sustained. Epperson v. Telegraph Co., 155 Mo. 352; Bogenschutz v. Smith, 8 Ky. L. R. 379; Railroad v. Jackson's Adm., 85 W.Va. 497. (2) The plaintiff's evidence showed that there was no change in the condition, which was obvious, of the apparatus from the time he began work until he was hurt; that he, a man of mature years, knew from the start its condition; that he was aware all the time of the risk of such an accident as occurred, and he continued at the work without complaint and without any assurance that the conditions would be changed. In these circumstances he assumed the risk, and can not now complain of the injury resulting. Price v. Railroad, 77 Mo. 511; Alcorn v. Railroad, 108 Mo. 97; Junior v. M., E. & P. Co., 127 Mo. 83; Lucy v. Oil Co., 129 Mo. 39; Nugent v. Milling Co., 131 Mo. 254; Doyle v. Trust Co., 140 Mo. 18; Epperson v. Telegraph Co., 155 Mo. 346; Pierce v. Clavin, 82 F. 550; Craig v. The Saratoga, 87 F. 319; Hunt v. Kile,, 98 F. 53; Patnode v. Harter, 20 Nev. 303; McGlynn v. Brodie, 31 Cal. 376; Railroad v. Jackson's Adm., 85 W.Va. 489; Bogenschutz v. Smith, 8 Ky. L. R. 376; Bell v. Railroad, 70 Ga. 566; Jenny v. Murphy, 115 Ind. 566; Marsh v. Chickering, 101 N.Y. 396; Powers v. Railroad, 98 N.Y. 274; Windover v. Troy, etc., Co., 4 App.Div. N. Y. 202; Graves v. Brewer, 4 App.Div. N. Y. 327; Pingree v. Leyland, 135 Mass. 398; Taylor v. Carew Mfg. Co., 140 Mass. 150; O'Malley v. S. B. G. L. Co., 158 Mass. 135; Disano v. N. E. S. B. Co., 40 A. (R. I.), 7; McDonald's Adm. v. N. & W. R. Co., 27 S.E. (Va.), 821; Bailey on Personal Injuries, secs. 509, 510,778; Beach on Cont. Neg., sec. 371; Wood on Master and Servant, p. 791; 2 Thompson on Negligence, p. 1008. (3) The evidence showed that plaintiff having pushed one half-beef from the side to the main rail, proceeded to push another over, without looking to see if the first, in going over, had not loosened the switch (as he knew it often did), the effect of which would be, as he knew, to cause the next half-beef pushed over to fall. Knowing the condition and the risk, he neglected to look, pushed the next half-beef, it fell and he was hurt. His own negligence having thus directly contributed to the accident, he can not recover, and it was the duty of the trial court to direct a nonsuit; and this although the evidence may have shown negligence on the part of the defendant. Lenix v. Railroad, 76 Mo. 91; Powell v. Railroad, 76 Mo. 83; Butts v. Railroad, 88 Mo. 272; Weber v. Railroad, 100 Mo. 200; O'Donnell v. Patton, 117 Mo. 21; Hogan v. Railroad, 150 Mo. 55; Holwerson v. Railroad, 57 S.W. 770; Bemisch v. Roberts, 143 Pa. St. 1; Rietman v. Stolte, 120 Ind. 314; Beach on Cont. Neg. 58.

BURGESS J. Gantt, Valliant, Marshall and Brace, JJ., concurring in said opinion; Sherwood, J., dissenting.

OPINION

In Banc

BURGESS, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the service of defendant as laborer, because of its negligence in not furnishing him reasonably safe appliances used by him in and about his work.

The defenses were contributory negligence on the part of plaintiff, and the assumption of the risk by him.

At the time of the accident defendant was the owner and operator of a large beef slaughtering and packing establishment in the city of St. Louis.

On the main floor was a room about eighty feet long from north to south and about sixty feet wide from east to west. At the north end of this room the beeves, having been first slaughtered, stripped and halved, were suspended on side rails that ran, at about fifteen feet above the floor, due south about thirty-two feet, where they curved a few feet to the west and made connection, by switches, with the main rail running east and west which passed over a scale near the west side of the room where the beeves were weighed, and then curved to the south side of the room, ran some distance close to the south wall and then curved south into cooling rooms. There were twelve of these side rails, or six pairs, each rail being about five feet from the adjoining rail, the extreme west one being near the scale, which was at the west side of the room. Each rail was about two inches wide, flat on top, except for a ridge which ran the length of the rail in the center. The shackle as it was called, rested on a wheel which fitted and ran along on this ridge and connected with the shackle, but suspended below the rail was a hook to which the half-beef was attached. There was attached to the ceiling girders (to which the rails, which stretched a short distance below, were secured) at each point where the said rails were to connect with the main rail, a simple mechanical...