Post v. Chicago, B. & Q. Ry. Co.

• Decision Date: 05 November 1906
• Citation: 121 Mo. App. 562,97 S.W. 233
• Court: Missouri Court of Appeals
• Parties: POST v. CHICAGO, B. & Q. RY. CO.

97 S.W. 233

121 Mo. App. 562

POST v. CHICAGO, B. & Q. RY. CO.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

1. MASTER AND SERVANT — SAFE PLACE TO WORK—NEGLIGENCE.

In an action for injuries to an employé, where it appeared that plaintiff was injured while cutting weeds on a slanting right of way with a scythe free from defects, a petition alleging negligence in defendant's failure to employ reasonable care to furnish plaintiff a reasonably safe place to work and to provide him a reasonably safe tool failed to state a cause of action, as defendant, in the exercise of reasonable care, was not required to provide a level right of way, nor the best appliance, but only such as was reasonably suited to the use the employé was required to make of it.

2. EVIDENCE—JUDICIAL NOTICE—USES OF ORDINARY TOOLS.

The courts will take judicial knowledge of the propriety of the use of an ordinary scythe for the cutting of weeds, being a matter of common knowledge about which reasonable minds do not differ.

Appeal from Circuit Court, Caldwell County; J. W. Alexander, Judge.

Action by Birdy B. Post against the Chicago, Burlington & Quincy Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

J. H. Wise, for appellant. O. M. Spencer, N. O. Borders, and Wm. Henry, for respondent.

JOHNSON, J.

Action to recover damages resulting from personal injuries alleged to have been caused by the negligence of defendant. A demurrer to the petition was sustained by the trial court on the ground that the facts stated constitute no cause of action, and plaintiff appealed.

The facts pleaded, in substance, are as follows: Plaintiff, a common laborer employed by defendant, a railway company, while engaged in the task of cutting weeds on defendant's right of way, struck the stalk of a large weed with the cutting edge of the scythe he was wielding. The blow failed to sever the stalk, and its force was communicated to the weed, causing the latter to sway towards plaintiff and strike him a violent blow in the face. The sight of his left eye was completely destroyed, and that of his right eye permanently impaired. It is alleged that plaintiff was working under the direction of defendant's foreman, and the specific acts of negligence charged are the failure of defendant to employ reasonable care to furnish plaintiff a reasonably safe place in which to work and to provide him with a reasonably safe tool with which to work. The place where the act was...