Schaller v. Lusk

• Decision Date: 15 April 1916
• Docket Number: No. 1671.,1671.
• Citation: 184 S.W. 1179
• Parties: SCHALLER v. LUSK et al.
• Court: Missouri Court of Appeals

184 S.W. 1179

SCHALLER v. LUSK et al.

No. 1671.

Springfield Court of Appeals. Missouri.

April 15, 1916.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by Frank J. Schaller against Jas. W. Lusk and others, receivers of St. Louis & San Francisco Railroad Company. Judgment for defendants, and plaintiff appeals. Affirmed.

Rechow & Pufahl, of Bolivar, and Hamlin, Collins & Hamlin, of Springfield, for appellant. John H. Lucas, of Kansas City, and W. W. Wood, of Humansville, for respondents.

ROBERTSON, P. J.

Plaintiff sues for personal injuries. At the close of his testimony the trial court directed a verdict in favor of defendants, and he has appealed.

Plaintiff's petition alleges that he was one of defendants' machinists at its shops in Springfield, and that his duties required him to work on the locomotive engines at that place; that it was the duty of defendant to furnish him a reasonably safe place in which to work; that his duties required him to go upon the running board of said engine, and that in proceeding to that point a wire attached to the asbestos on the engine near the cab caught his foot, caused him to start to fall, and in the fall he caught a loose branch pipe, which fell with him to the floor of the shop. The petition then proceeds:

"That the negligence complained of defendants is that they failed to provide plaintiff with a safe place in which to work in this, that the servants and employés of the defendants had loosened the screws and taps which held and attached said branch pipe to the engine, and negligently failed to notify the plaintiff of said fact, or to remove the said branch pipe from the engine after it had been loosened by the removal of said screws and taps, and further negligently failed to remove the wire, which caught his foot and caused him to fall from the asbestos on the side of the engine."

That portion of plaintiff's statement of the case relating to the testimony at the trial is adopted as follows:

"On the 4th day of March, 1915, while in the performance of his duties, he was directed by his foreman to put some brasses on engine No. 716. He understood what that meant; that is, that he was to replace, among other things, valves, boiler checks, injectors, etc., on the engine. A helper was furnished him, and he and his helper at once proceeded to the work as directed by his foreman. The articles mentioned, boiler checks, etc., were to be placed on the outside of the boiler at different places, some up near the front end, and in so doing the work it would be necessary for the plaintiff and his helper to walk along the running board on the side of the engine, and, in order to get onto it they were compelled to go through the cab and out at a little door which opened from the cab to the board. They put their material into the cab and started to go out onto the board. Plaintiff was carrying in his right hand the boiler check, and stepped his left foot out of the door onto the board and started to draw the other foot...