Webber v. Terminal R. Ass'n of St. Louis

• Decision Date: 19 April 1934
• Docket Number: 31177
• Parties: Clarence Webber v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

70 S.W.2d 863

335 Mo. 11

Clarence Webber v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 31177

Supreme Court of Missouri

April 19, 1934

Rehearing Denied April 19, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Reversed.

T M. Pierce, J. L. Howell and Walter N. Davis for appellant.

(1) Assumption of risk is a bar to an action in a case governed by the Federal Employers' Liability Act. Pryor v. Williams, 254 U.S. 43, 41 S.Ct. 36, 63 L.Ed. 120. (2) A submissible case was not made by plaintiff, for, at common law and under the Federal Employers' Liability Act, the rule is well settled that a servant assumes extraordinary risks incident to his employment or risks caused by the master's negligence which are obvious or fully known and appreciated. Boldt v. Railroad Co., 245 U.S. 441, 38 S.Ct. 139, 62 L.Ed. 385; Hoch v. Railroad Co., 287 S.W. 1047. (3) Where the employee does know of the defect (arising from the employer's negligence) and appreciates the risk that is attributable to it, then if he continues in the employment without objection, or without obtaining from his employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master's breach of duty. Seaboard Air Line v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062. (4) If the servant had or acquired knowledge of the dangerous condition or instrumentality, all right of recovery is barred. McFarland v. C. & O. Co., 177 Ky. 556, 197 S.W. 944; Roddy v. Railroad Co., 104 Mo. 250, 15 S.W. 1112; Derringer v. Tatley, 34 N.D. 43, 157 N.W. 811; Brieg v. Railroad, 98 Mich. 222, 57 N.W. 118; So. Pac. Railroad Co. v. Seley, 152 U.S. 145, 14 S.Ct. 530, 38 L.Ed. 391; Am. C. & F. Co. v. Allen, 264 F. 647; Holm v. Cities Serv. Trans. Co., 60 F.2d 721. (5) An employee is held to a knowledge of all dangers or defects as are obvious or open to ordinary observation. So, when a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of his senses, having in view his age, intelligence and experience, he will not be heard to say that he did not realize or appreciate it. St. Louis Cordage Co. v. Miller, 126 F. 495, 63 L. R. A. 551; Railroad Co. v. Shalstrom, 195 F. 725, 45 L. R. A. (N. S.) 387; Grandpre v. Railroad Co., 46 S.D. 32, 190 N.W. 323; Mo. Pac. Railroad Co. v. David. 284 U.S. 460; Boisvert v. Ward, 199 Mass. 594, 85 N.E. 849; Riverside Iron Wks. Co. v. Green, 79 Kan. 588, 100 P. 482; Cole v. Spokane G. & F. Co., 66 Wash. 393, 119 P. 831; Limberg v. Glenwood Lbr. Co., 127 Cal. 598, 60 P. 176, 49 L. R. A. 33; Peterson v. Am. Ice Co., 83 N. J. L. 579, 83 A. 872, 47 L. R. A. (N. S.) 144. (6) If an employee is in as good a position as his employer for ascertaining and understanding the situation, and equally well knows and appreciates the conditions, he cannot be allowed to complain for injuries sustained by working therein. Hightower v. So. Ry. Co., 146 Ga. 279, 91 S.E. 52; Drake v. Topeka Ry. Co., 96 Kan. 727, 153 P. 539. (7) The doctrine of assumed risk applies as well to those risks which arise or become known to the servant during the service as to those in contemplation at the time of the original hiring. St. Louis Cordage Co. v. Miller, 126 F. 495, 61 C. C. A. 477, 63 L. R. A. 551; Ill. Cent. Co. v. Fitzpatrick, 227 Ill. 478, 81 N.E. 527; Grandpre v. Railroad Co., 46 S.D. 32, 190 N.W. 323.

Louis E. Miller and John F. Gibbons for respondent.

(1) A submissible case was made for plaintiff at common law and under the Federal Employers' Liability Act, since employee does not assume extraordinary risks arising from the negligence of the master, of which he has no appreciation of the resulting danger. Natl. Steel Co. v. Hore, 155 F. 62; West v. Railroad Co., 179 F. 801; George v. Railroad Co., 225 Mo. 364; Chicago & N. W. Ry. Co. v. Bower, 241 U.S. 469; Railroad Co. v. De Atley, 241 U.S. 310; McIntyre v. Ry. Co., 227 S.W. 1047; Schlueter v. Ry. Co., 296 S.W. 105; Oglesby v. Ry. Co., 1 S.W.2d 172; State ex rel. Ry. Co. v. Cox, 46 S.W.2d 849; Doyle v. Terminal Ry., 31 S.W.2d 1010; Bissaillion v. Phila. Rapid Transit Co., 84 Pa. S.Ct. 135. (2) Where the master constructs a scaffold and equips it with a chain that is rusty, which condition is known to the employee, and causes one end, at which the rusty chain is placed, to be raised about five inches higher than the other corner of the scaffold, thereby increasing the weight thereon and causing the chain to break and the scaffold to fall, the question of whether employee assumed the risk of the master's negligence was properly for the jury. Stager v. Troy Laundry Co., 63 P. 645; Sullivan v. Ry. Co., 107 Mo. 66; Clippard v. St. Louis Transit Co., 202 Mo. 432; George v. Ry. Co., 225 Mo. 364; Hamilton v. Rich Hill Coal Mining Co., 108 Mo. 364; Schlueter v. Ry. Co., 296 S.W. 105; McIntyre v. Ry. Co., 227 S.W. 1047; C. & O. Ry. Co. v. De Atley, 241 U.S. 310; C. & N. W. Railroad Co. v. Bower, 241 U.S. 469. (3) In passing on demurrer, evidence adduced by plaintiff must be considered as true and every reasonable inference and intendment must be indulged in plaintiff's favor. Schlueter v. Rail-Co., 296 S.W. 105; Story v. People's Motorbus Co., 37 S.W.2d 898. (4) An employee may have knowledge of defects in the place of work or the appliances and instrumentalities for work, but in order to charge him with assumption of risk it is necessary that he should know of and appreciate the dangers incident to the work under the existing conditions, and it cannot be said that he assumes the extraordinary risks resulting from the master's negligence. Railroad Co. v. Thompson, 236 F. 1; West v. Railroad Co., 179 F. 801; George v. Railroad Co., 225 Mo. 364; Sullivan v. Railroad Co., 107 Mo. 77; McIntyre v. Railroad Co., 227 S.W. 1047; Railroad Co. v. Bower, 241 U.S. 469; Railroad Co. v. De Atley, 241 U.S. 310. (5) An employee may have knowledge of defects in the place of work or the appliances and instrumentalities for work, although obvious and open to ordinary observation, it does not follow that he has a knowledge and appreciation of the dangers incident to the work under the existing conditions and this is so, especially where extraordinary dangers and risks are created by the negligence of the master. Railroad Co. v. Thompson, 236 F. 1; West v. Railroad Co., 179 F. 801; George v. Railroad Co., 225 Mo. 364; Sullivan v. Railroad Co., 107 Mo. 77; McIntyre v. Railroad Co., 227 S.W. 1047; Railroad Co. v. Bower, 241 U.S. 469; C. & O. Railroad Co. v. De Atley, 241 U.S. 310. (6) The master's neglect of duty to furnish a reasonably safe place for work or reasonably safe appliances and instrumentalities is not an ordinary risk of employment and the servant does not assume the extraordinary risks arising from the negligence of the master in increasing the hazards and dangers of the surroundings or appliances. Railroad Co. v. Bower, 241 U.S. 469; Sullivan v. Railroad Co., 107 Mo. 77; Cole v. St. Louis Transit Co., 183 Mo. 81; Garner v. K. C. Bridge Co., 194 S.W. 85; Bowman v. Kansas City Elec. L. Co., 213 S.W. 164.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming to the writer by reassignment, is an action for damages, under the Federal Employers' Liability Act (U.S.C.A., Title 45, Secs. 51-59), for personal injuries resulting from a fall while plaintiff was, as an employee of defendant, painting the Eads bridge, across the Mississippi River between Missouri and Illinois. The applicability of the Federal Act was admitted by defendant. Plaintiff had a verdict for $ 35,000, and, from judgment entered thereon, defendant has appealed.

The negligence relied upon is shown by the following part of plaintiff's Instruction No. 1, authorizing a verdict, to-wit:

"If you find and believe from the evidence that the chain supporting the scaffold upon which plaintiff was working broke and caused the said scaffold to fall and caused plaintiff to fall and sustain injuries, and that said chain, at and prior to said time, was weakened by rusting, . . . to such an extent that it was likely to break and give way while being used to support the said scaffold and that by reason thereof it was dangerous and not reasonably safe, . . . and was likely to cause said scaffold to fall and to cause injuries to persons thereon, if you so find; and if you further find from the evidence that defendant knew, or by the exercise of ordinary care could have known, of said condition of said chain and said danger of injury thereby, if any, in time for the defendant, by the exercise of ordinary care, to have prevented said fall and said injuries and that defendant negligently failed to do so." (Italics ours.)

The defenses set up by defendant's answer, which also contained a general denial, were an unavoidable accident and assumption of risk. Defendant contends that the court should have sustained its demurrer to the evidence because plaintiff's own testimony showed conclusively that he knew of the insufficiency of the chain and assumed the risk of it breaking. Plaintiff's evidence was that on the day he was injured (August 23, 1929) he was working upon a scaffold on a stage suspended by chains attached to I beams of one of the approaches of the Eads bridge. A chain, on the end of the stage where plaintiff was working, broke and he fell about 25 feet to the ground. Plaintiff testified that he and another painter commenced working in the center of the stage and worked toward the west end; that two other painters began at the other end of the stage and worked toward the center; that the chain which broke was three-eighths of an inch in diameter and eight to ten feet long; that the end of the...