Rahm v. The Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 02 March 1908
• Parties: FRANK RAHM, Appellant, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Respondent
• Court: Kansas Court of Appeals

108 S.W. 570

129 Mo.App. 679

FRANK RAHM, Appellant, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

March 2, 1908

Appeal from Daviess Circuit Court.--Hon. Joshua W. Alexander, Judge.

AFFIRMED.

Judgment affirmed.

Platt Hubbell and George Hubbell for appellant.

(1) The right of trial by jury is a constitutional right. The lower court deprived the plaintiff of the right of trial by jury. Ladd v. Williams, 104 Mo.App. 397; Jones v Railroad, 32 L.Ed. 480, 128 U.S. 443, 9 S.Ct. 118; Supp Fed. Stat. Ann. 1907, p. 68, sec. 2. Act June 11, 1906, c 3073, sec. 2, 34 Stat. 232; Dean v. Woodenware Works, 106 Mo.App. 177; James v. Mut. R. F. L., 148 Mo. 16; Ballard v. Railway, 51 Mo.App. 457; Grace v. Railway, 156 Mo. 301; Moore v. Transit Co., 194 Mo. 9; Bender v. Railway, 137 Mo. 244; O'Hare v. Railway, 95 Mo. 667. The same rule of decision obtains in Illinois. L. M. & L. v. Cook, 222 Ill. 206; same case, 78 N.E. 599. (2) The rights of the parties are governed by the common law. (3) The common law of Illinois is presumed to be the same as the common law of Missouri. Slaughter v. Railroad, 116 Mo. 277; Price v. Clevenger, 99 Mo.App. 542. (4) Plaintiff's instructions correctly declare the law of this case--and this cause should be submitted to the jury under plaintiff's instructions. Booth v. Air Line Co., 76 Mo.App. 516; Lawrence v. Ice Co., 93 S.W. 899; Bonding Co. v. Mills, 152 F. 107; Devore v. Railway, 86 Mo.App. 429; Boiler & Mfg. Co. v. Parks, 78 N.E. 811; N. E. & S. Co. v. McCorkle, 76 N.E. 843, 219 Ill. 557; W. & F. v. Kapaczynski, 75 N.E. 751; 218 Ill. 149; H. E. F. Co. v. Clark, 214 Ill. 399; Hansell-Elcock Foundry Co. v. Clark, 73 N.E. 789; Coal Co. v. Campbell, 71 N.E. 863, 211 Ill. 216.

M. A. Low and E. M. Harber for respondent.

(1) The injury of plaintiff occurring in the State of Illinois, his right to recover therefor is to be determined by the laws of that State and such laws cannot be evaded and recovery had by bringing suit in this State when no liability exists against the defendant for such injury in the State of Illinois. Williams v. Railway, 106 Mo.App. 61; Fogarty v. Railway, 180 Mo. 490; Carson v. Smith, 133 Mo. 606; Bridge v. Railway, 27 S.C. 456, 13 Am. St. 653 and note; Railway v. Babcock, 154 U.S. 190, 14 Sup. 978; Railway v. Carroll, 97 Ala. 126, 38 Am. St. 163; Railway v. Jackson, 89 Tex. 107, 59 Am. St. 28; Railway v. Reed, 158 Ind. 25, 92 Am. St. 293; Railway v. Jourdan, 34 Am. and Eng. R. Cas., N. S. 728 and note (Ky). (2) Under the law of Illinois, where the tool or appliance complained of is a simple appliance of common use, easily understood, such as here, a common handle punch, the employee cannot recover damages for any injury happening him in the use thereof; though such tool or appliance is in a defective condition and he has made complaint thereof and it's repair or replacement has been promised, and he directed to proceed to use such appliance until such repair or replacement has been made, a case directly in point and decisive of the case at bar is that of Webster Mfg. Co. v. Nesbitt, 205 Ill. 275, 68 N.E. 936; Wire Co. v. Maxwell, 116 Ill.App. 296; Bowen v. Railway, 117 Ill.App. 9; Packing Co. v. Kertowicz, 119 Ill.App. 488. (3) Under the laws of Illinois, it is also incumbent upon the employee seeking recovery against the employer for injuries happening by reason of being provided with unsafe appliances or place of work, to establish: First, that the appliance or place was defective; second, that the master had notice thereof, or knowledge, or ought to have had; third, that the servant did not know of the defect, and had not equal means of knowing with the master. Cases in point: Coal Co. v. Barringer, 218 Ill. 327, 75 N.E. 900 and cases cited; Harvesting Machine Co. v. Zakewski, 220 Ill. 522, 77 N.E. 147. (4) While concerned as to the law of Illinois alone as applicable to the facts of this case, and of this, a reading of the foregoing cases will show there can be no reasonable grounds for difference. We believe the rule is now firmly established by the large majority of the most respectable and learned courts of the land; that no employee, much less a skilled machinist of eighteen years' experience, in the mechanical department of the various railroads of the country, will be permitted to recover damages for injuries received in the use of the ordinary and simplest possible appliance in constant use, the danger in the use of which he fully understands or which is easily comprehended by him. Marsh v. Chickering, 101 N.Y. 396; Webster Mfg. Co. v. Nesbitt, supra; Bowen v. Railway, supra; Packing Co. v. Kretowicz, supra; Coal Co. v. Barringer, supra; Harv. Mach. Co. v. Zakewski, supra; Railway v. Phuiney, 77 N.E. 296; Meador v. Railway, 138 Ind. 384, 46 Am. St. 384 and note; Vanderpool v. Partridge (Neb.), 112 N.W. 318; Bottling Co. v. Theiler (Neb.), 80 N.W. 821; Railway v. Weikal (Kan.), 84 P. 720; Kaschman v. Ash. (Minn.), 108 N.W. 514; Olson v. Lumber Co., 102 Wis. 264; Stark v. Cooperage Co. (Wis.), 106 N.W. 841; Wachsmith v. Shaw Electric Crane Co., 118 Mich. 275; Damper v. Lewis, 113 Mich. 144; Heuggler v. Cohn, 68 N. J. L. 240; O'Brien v. Railway (Tex. Civ. App.), 82 S.W. 319; Nichols v. Glass Co., 126 Mo. 65; Anderson v. Box Co., 103 Mo.App. 382; Posh v. Railway, 121 Mo.App. 562; Goreagon v. Iron Works, 158 Mass. 596; Martin v. Highland Co., 128 N.C. 264, 83 Am. St. 671 and note; Railway v. Blackman, 39 So. 479 (Miss.); Railway v. Kellow, 55 Ark. 483; Conley v. Express Co., 87 Me. 352; Lynn v. Refining Co., 128 Iowa 501; Packing Co. v. Marcon, 106 F. 645; Gowan v. Harley, 56 F. 973 and cases cited.

OPINION

JOHNSON, J.

--Action by a servant against his master to recover damages alleged to have been caused by the negligence of the master. The injury occurred November 16, 1905, at defendant's machine shops in Silvis, Illinois. Plaintiff, employed as a machinist, was directed by his foreman to remove a bolt from an engine which was undergoing repairs. The bolt, placed inside of the left forward driving wheel and used to support three frames and a driving box binder, was about twenty-seven inches in length, stood in a vertical position, and was so firm in its hole that great force was required to drive it therefrom. Point is made by counsel for plaintiff that he was not an experienced machinist, but we think his own testimony shows conclusively that he was an experienced mechanic and began his task in a proper manner. The tools used by him and his helper were a bolt hammer and a sledge. Before using them, plaintiff drilled a hole in the center of the bolt in order to loosen it somewhat and thus make it more responsive to the blows of the hammer. The hammer was made of forged or cast steel, flattened at the top to receive blows from the sledge and tapered at the lower end into a punch shaped projection three or four inches in length and perhaps three-fourths of an inch in diameter, designed to follow the bolt into the hole as it was being driven out. The hammer was held in place by means of a wooden handle two feet long adjusted in the manner of an ordinary hand hammer. It appears that the hammer used on the occasion in question had been in use for sometime and that its top being of softer metal than the sledge had become battered and mashed. The helper held it in place while plaintiff wielded the sledge. The last blow struck caused a particle of steel to sliver from its head and strike plaintiff in the eye, destroying the sight.

The specific negligence alleged is that "defendant then and there and thereby negligently failed to furnish plaintiff with a reasonably safe appliance, tool and equipment for the doing of said work; and, then and there and thereby negligently failed to furnish plaintiff with a reasonably safe bolt punch (hammer) for said work; and defendant, knowing of such defective condition of said bolt punch, then and there negligently required and ordered the plaintiff to do said work with a bolt punch that was not reasonably safe. . . . Said bolt punch was defective in that part of said bolt punch in and around the head thereof, and which part it was necessary to strike with the sledge aforesaid in driving and extracting said bolt, was old, battered, broken and slivered and was then and thereby not reasonably safe and suitable for the purpose for which plaintiff was required to use it."

The answer contains a general denial and a plea that under the law in force in Illinois at the time of the injury the risk which culminated in the injury was assumed by plaintiff as a part of his contract of employment; that under said law, plaintiff should be held guilty of contributory negligence and, as "he has no right of action or cause of complaint against it under the laws of the said State of Illinois, the State wherein his alleged cause of action accrued," he has none in this State.

It appears from the evidence that defendant maintained a tool room at its shops in charge of a clerk who issued tools therefrom on application of the workmen, that plaintiff complained to the clerk of the defective condition of the hammer at the time it was handed him, but was told that it was the only hammer available as others suitable were in the blacksmith shop being repaired. Plaintiff accepted it with reluctance but endeavored afterwards to extract the bolt without using it. While thus at work, his foreman came up and seeing that no progress was being made "picked up the bolt punch," according to the testimony of plaintiff "and saw a broken chisel laying on the floor and picked that up and put it down in the bolt hole and held the bolt punch on it." Plaintiff struck the hammer several times with the sledge when the foreman said "let...