Vanderbeck v. The Wabash Railroad Company
| Decision Date | 02 January 1911 |
| Citation | 133 S.W. 1178,154 Mo.App. 321 |
| Parties | ARTHUR VANDERBECK, Respondent, v. THE WABASH RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.
AFFIRMED.
Judgment affirmed.
J. L Minnis and Robertson & Robertson for appellant.
(1) The court erred in refusing to instruct a verdict for the defendant at the close of the evidence for the plaintiff and at the close of all the evidence. Because the plaintiff failed to establish any negligence on the part of the defendant. Proof that if the pair of wheels had been blocked the injury would not have occurred is not proof of negligence. Muirhead v. Railroad, 19 Mo.App. 644; Smith v. Railroad, 69 Mo. 37; Conway v Railroad, 24 Mo.App. 235; Harrington v Railroad, 104 Mo.App. 663; Saversnick v. Schwarzchild, 125 S.W. 1123; Hallingsworth v. Biscuit Co., 114 Mo.App. 20. (2) Because the evidence showed that the pair of wheels were kept on the storage track in the ordinary way according to the method followed by the defendant's servants working with them and that their rolling in this way was ordinarily incident. Therefore plaintiff assumed the risk of injury from the wheels rolling by reason of his contract of employment. Harrington v. Railroad, supra; Bradley v. Railroad, 138 Mo. 302; Roberts v. Telephone Co. , 166 Mo. 378; Thompson on Neg., sec. 4613; Steinhauser v. Spraul, 127 Mo. 562; 2 Thompson on Neg., sec. 1008; Saversnick v. Schwarzchild, 125 S.W. 1123. (3) Because the plaintiff's own evidence shows that it was the practice to place wheels upon the storage track without blocking them, which the plaintiff well knew and that he knew that drive wheels would roll if the counter balances were not in a certain position. And therefore, the plaintiff knowing these things, the maxim "volenti fit injuria" applies as well. 4 Thompson on Neg., secs. 4610-4612; Mathias v. Stockyards Co., 185 Mo. 434; Pauck v. Provision Co., 159 Mo. 478; Lee v. Railroad, 112 Mo.App. 393; Fugler v. Bothe, 117 Mo. 475. (4) Because the negligence of the plaintiff at the time of his injury directly contributed to produce it. He knew that if the wheels should not be blocked and the counter balances were not in a certain position the wheels would roll when the support of the second pair was removed. Yet he made no effort whatever to ascertain whether the third pair were blocked nor to ascertain the position of the counter balances. This was his own testimony. (5) The court erred in giving plaintiff's instruction "I. " This instruction is erroneous in submitting to the jury failure to block the wheels as negligence without requiring the jury to find before they could find defendant guilty of negligence in this regard, that this was not the usual method of handling the wheels and that the risk of injury therefrom was not assumed, by plaintiff. To say the least, plaintiff's assumption of risk was an issue of fact in the case and should have been submitted to the jury. Harrington v. Railroad, supra; Saversnick v. Schwarzchild et al., supra.
Aubrey R. Hammett for respondent.
(1) Counsel for appellant devote their entire argument to the contention that "under the pleadings and the evidence plaintiff is not entitled to recover." "Because plaintiff failed to establish any negligence on the part of defendant," etc. In this connection recall the duty of master to servant. "A master is required to supply by the exercise of reasonable care, safe appliances, safe place to work, and is required not to expose his servant to needless hazard as to the place where the work is prosecuted or the manner of its performance, and whether it be machinery the servant is to apply or whether it be the place or manner of doing the work, it is the duty of the master to carefully protect the servant." Halliburton v. Railroad, 58 Mo.App. 27. (2) The care required of defendant in this behalf is such as a reasonable prudent man would have used under the same circumstances, and the failure of defendant so to do would be negligence, rendering it liable. McMahan v. Pacific Ex. Co., 132 Mo. 641. (3) It is conceded that the defendant, through its duly authorized agents, placed the drive wheels upon the track as alleged in plaintiff's petition, i. e., in such a position that when the first and second pairs were rolled out the third pair, of its own weight and volition, ran out and followed the second set of wheels, which plaintiff and other servants were pushing, a distance of eighteen or twenty inches, and caught plaintiff's hand and mashed it, and that the said third set or pair of wheels had been placed as they were found on this occasion, without having been fastened, blocked or scotched in any way to prevent them from starting as they did when the set of wheels immediately in front of them should be moved. The duty upon the master to render plaintiff's labor safe or to lessen the hazard of the same can be done by the exercise of reasonable care is a continuing duty and can only be performed by timely inspections and observations on the part of the master. Lee v. Railroad, 112 Mo.App. 372.
Plaintiff was an employee of defendant and was injured while engaged in labor for it. He charges his injury to the negligence of defendant and brought this action for damages and recovered judgment in the trial court.
He was engaged with several others in moving engine drive wheels along a level storage track in defendant's machine shop. These wheels are about fifty-six inches in diameter, attached stationary to a connecting axle. They were kept upon the storage track in various numbers until needed for use, and while so stored in this way were kept together, each wheel touching the next one to it. Each wheel is solid half way to the hub between certain of its spokes, making a weight, or counter-balance. The wheels are so fastened and arranged upon the axle...
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