Riger v. M. E. Leming Lumber Co.

• Decision Date: 14 January 1922
• Citation: 236 S.W. 689,210 Mo.App. 322
• Parties: C. W. RIGER, Respondent, v. M. E. LEMING LUMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

236 S.W. 689

210 Mo.App. 322

C. W. RIGER, Respondent, v. M. E. LEMING LUMBER COMPANY, Appellant

Court of Appeals of Missouri, Springfield

January 14, 1922

Appeal from the Circuit Court of Bollinger County.--Hon. Peter H Huck, Judge.

REVERSED.

Judgment reversed.

Oliver & Oliver for appellant.

(1) Plaintiff's petition fails to state a cause of action against defendant. It neither alleges that the tools with which plaintiff worked were defective nor that the place furnished him to work was unsafe. To recover, one condition or the other must be pleaded and proved. Modlagl v. Iron & Foundry Co., 248 Mo. 587, l. c. 602-3. (2) Defendant's demurrer at the close of plaintiff's case should have been sustained. Plaintiff's evidence fails to show any defect whatever in the simple tools with which he worked--a hammer and cold chisel--and also failed to show that the place where he worked was in any way unsafe. He chose his own work, performed it in his own way, and with tools which he himself chose, at noon day and out of doors. The testimony offered by plaintiff shows that a sliver was just as liable to fly from a new cable as from an old one. Abs. p. 26; Kellerman v. Telephone Co., 189 Mo.App 506, l. c. 511; Coin v. Lounge Co., 222 Mo. 488; Lowe v. Railroad, 265 Mo. 587; Modagl v. Iron & Foundry Co., 248 Mo. 587; Bennett v. Crystal Co., 146 Mo.App. 565; Harris v. Railway, 146 Mo.App. 524; Forbes v. Dunnavant, 198 Mo. 193. (3) Defendant's demurrer at the close of the whole case should have been sustained. No act of negligence was proven against defendant, and recovery must be had, if at all, upon proof of specific acts of negligence alleged. There was not one word of testimony proved or tended to prove that either the hammer or chisel were in any way defective. Practically every witness testified (and no witness denied it) that the cable was a good one, suitable for the purpose for which it was being used and that a sliver was just as apt to fly from a new cable as from an old one. The hammer and chisel were the only tools with which he worked and the cable was the only appliance on which he worked. The tools were simple and so was the appliance. McManawee v. Railroad, 135 Mo 440, l. c. 447; Hennerker v. Beetz, 217 S.W. 533; Kellerman v. Telephone Co., 189 Mo.App. 506; Neil v. Prior, 180 S.W. 407 (Mo. App.); Miller v. Railroad, 175 Mo.App. 349; Railroad v. Burton, 211 S.W. 186. (4) The burden of plaintiff's petition is that the cable which plaintiff cut in two was old, rotten and brittle. His own witness (as well as defendant's witnesses) testified that slivers were just as liable to fly from a new cable as from this one. In addition to this the condition of the cable was as obvious to plaintiff as to defendant and plaintiff's own witness testified that no one could, by a reasonably careful inspection of the cable, tell whether slivers would fly from it or not. The knowledge of the plaintiff was equal to that of the defendant with respect to the condition of the cable. Abs., pp. 26, 27; Pulley v. Oil Co., 136 Mo.App. 172; Epperson v. Cable Co., 155 Mo. 346, l. c. 376-8; Modlagl v. Iron & Foundry Co., 248 Mo. 587. (5) Supposing the cable was "rotten and brittle" (and all the testimony shows it was not) still plaintiff cannot recover, because such a rotten and brittle condition was not shown to be the proximate cause of plaintiff's injury. Slivers were just as liable to fly from a new cable as from the one on which plaintiff was working. Abs. pp. 26, 27, 31, 37, 41. (6) To succeed, the plaintiff must have proved the specific defects he alleged--that the cable was rotten and britle--and then have also proved that that condition was the proximate cause of his injury. That is elementary in the law of damages for personal injury. In this case he proved neither. Giles v. Railroad, 212 S.W. 874; McCarty v. Hotel Co., 144 Mo. 397, l. c. 402; Heneker v. Beetz, 217 S.W. 553; Waldhier v. Railroad, 71 Mo. 514; McMenamee v. Railroad, 135 Mo. 440, l. c. 447. (7) The cutting of this cable was a job for two or three men. Plaintiff does not deny that, but be declined and shunned the offer of witness McClendon to assist him. He chose the method by which the work was to be done and worked with simple tools, he thereby assumed the risks incident to it. An employer does not assume risks caused by his employee's negligence, but he does "assume the risks which are liable to happen on account of the nature of the employment when the employer has used reasonable care to avoid that result." Powers v. Loose-Wiles Co., 195 Mo.App. 430; Tallman v. Nelson, 141 Mo.App. 478; Whellan v. Zinc & Chemical Co., 188 Mo. 603-4; Oxford v. Dudley, 217, l. c. 608; Kaemmerer v. St. Louis Axle Co., 196 S.W. 439, l. c. 442-3; Roberts v. Telephone Co., 166 Mo. 370, l. c. 378. (8) The master is not an insurer against either accident or injury. "The master need not either actually or constructively hover over every transaction to keep the servant from hurting himself at his work by an act sounding to folly. He may rest somewhat on the fact that the servant has eyes, reasoning faculties, experience, knowledge in his trade. The master pays him to use them all. So the servant, in the very act of hiring, agrees that he will." Forbes v. Dunnavant, 198 Mo. l. c. 209; Trainer v. Mining Co., 243 Mo. 359, l. c. 373; Miller v. Railroad, 175 Mo.App. 349; Pulley v. Oil Co., 136 Mo.App. 172; Lowe v. Railroad, 165 Mo.App. 523; Coin v. Lounge Co., 222 Mo. 488.

Wm. Morgan and Wammock & Welborn for respondent.

(1) In passing on a demurrer to the evidence the plaintiff's evidence is to be taken as true and he is to be allowed every favorable and reasonable inference arising from the evidence. Maginnis v. Mo. Pacific Ry. Co., 268 Mo. 667; Link v. Hamlin, 270 Mo. 319; Bingaman v. Hannah, 270 Mo. 611. (2) If the minds of reasonable men may differ upon whether or not negligence may be inferred from what is shown by the testimony when viewed in the most favorable light for the plaintiff, the question of whether or not negligence may be inferred from such testimony is for the jury. The same rules apply in allowing the jury to determine whether or not the injury is the proximate cause of the negligence which has been proven, or which may be inferred from the evidence. Hegberg v. St. Louis and San Francisco Ry. Co., 164 Mo.App. 514; Power v. Wabash R. R. Co., 244 Mo. 1; Pontius v. Railway Co., 174 Mo.App. 576; Hawkins v. Mo. Pacific Ry. Co., 182 Mo.App. 323; Johnson & Co. v. Springfield I. & F., etc. Co., 143 Mo.App. 456. (3) The master must use ordinary care in furnishing reasonably safe appliances with which his servant is to work, whether such appliances be simple or otherwise. Powell v. Walker, 195 Mo.App. 150; Williams v. Pryor, 272 Mo. 613. (4) The servant does not assume risk arising from the master's negligence. Johnson v. Brick Co., 276 Mo. 42; Bradshaw v. Lusk, 195 Mo.App. 201; Humphrey v. Lusk, 196 Mo.App. 442; Young v. Lusk, 268 Mo. 625; Walsh v. Quarry and Construction Co., 205 Mo.App. 159. (5) Liability for negligence does not hinge on whether by reasonable prudence the very injury complained of should have been foreseen, but a party may be held for anything, which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission. Benton v. City of St. Louis, 248 Mo. 98; Kupferle Co. v. Railway Co., 275 Mo. 457. (6) Appellant is not entitled to have his motion for new trial sustained on the ground of newly discovered evidence. Sang v. St. Louis, 262 Mo. 467; Lyons v. Railroad, 253 Mo. 162; Devoy v. St. Louis Transit Co., 192 Mo. 197.

BRADLEY, J. Cox, P. J., concurs. Farrington, J., concurs.

OPINION

BRADLEY, J.

--This is an action for personal injury. The cause was tried below to a jury, and verdict and judgment went in favor of plaintiff for $ 5000. Motions for new trial and in arrest were overruled, and defendant appealed.

Plaintiff was employed by defendant at Remoc in Bollinger County, and was engaged in loading logs from the ground onto cars. The loading outfit was on a spur or switch adjacent to the railroad. The loading was carried on by steam power, wire cable, tongs, etc. A car of coal was placed on a switch leading to the loader, and in order to unload this car of coal it was necessary to move it down the switch to the coal bin. To do this the wire cable, the tongs and a pulley attached to the car of coal were used. The tongs were made fast to a stump and the cable passed through the attached pully and then fastened to one of defendant's engines on adjacent logging track. The cable was fastened to the tongs by being tied to the ring thereof. The force exerted on the cable drew the knot in the cable at the tongs' ring so tight that it could not be loosened except by cutting the cable. After the car of coal was moved, plaintiff laid the knot in the cable on a railroad rail, and with a cold chisel and a hammer was attempting to cut the cable to release the tongs. While so engaged and after plaintiff had made four or five licks a small piece of severed wire about a quarter of an inch in length struck plaintiff in the left eye and totally destroyed the sight thereof.

Plaintiff alleges that defendant's foreman directed him to cut the cable and that said cable where plaintiff attempted to cut it was rotten and brittle. Omitting some preliminaries the petition alleges: "That the said iron cable was old and at the end in which the said knot was tied as aforesaid was frazzled and the many small wires of which the same was composed had become loose, unraveled and unwoven and this defendant and its said foreman, officers, agents and employees knew or should have known, and the said defendant and its officers, agents and employees had caused and...