Wendall v. Chicago & A. Ry. Co.

• Decision Date: 25 May 1903
• Court: Missouri Court of Appeals
• Parties: WENDALL v. CHICAGO & A. RY. CO.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 689

100 Mo. App. 556

WENDALL v. CHICAGO & A. RY. CO.^*

Court of Appeals at Kansas City, Missouri.

May 25, 1903.

MASTER—SERVANT'S INJURIES—SAFE PLACE TO WORK—DIRECTING VERDICT.

1. Plaintiff was employed by defendant as a car cleaner, working on a plank platform built out of 3x10-inch yellow pine laid longitudinally, and uncovered, and which, as to material and structure, conformed to that which was usual and customary among railroads. The surface of the platform had, while comparatively new, become somewhat splintery by exposure to the weather and constant trundling done over it, but was otherwise in good condition. Plaintiff was injured while walking on the platform by a splinter penetrating through the sole of his shoe into his foot. Held, that the platform was a reasonably safe place for plaintiff to work in, and he could not recover for his injury.

2. In an action for personal injuries to a servant, where plaintiff alleges that the master failed to furnish a reasonably safe place to work, and the evidence is undisputed as to the facts, the question of the safety of such place is for the court.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Albert A. Wendall against the Chicago & Alton Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Franklin Houston and T. B. Buckner, for appellant, cited 2 Rorer on Railroads, 1038, 1039, and authorities there cited; Kelly v. Union Railway & Transit Co., 11 Mo. App. 1; Yancey v. Wabash, St. L. & P. R. R. Co., 90 Mo. 433, 6 S. W. 272; Bell v. H. & St. J. R. R. Co., 86 Mo. 599; Zimmerman v. H. & St. J. R. R. Co., 71 Mo. 476; Lenix v. Railroad, 76 Mo. 86; Harris v. Mo. Pac. R. R. Co., 40 Mo. App. 255; Jackson v. Mo. Pac. Ry. Co., 104 Mo. 448, 16 S. W. 413; Hyde v. M. P. Ry. Co., 110 Mo. 272, 19 S. W. 483; Drake v. C. & A. R. R. Co., 51 Mo. App. 562; Weaver v. Bellefontaine R. R. Co., 60 Mo. App. 207; Weber v. Railroad, 100 Mo. 194, 12 S. W. 804, 13 S. W. 587, 7 L. R. A. 819, 18 Am. St. Rep. 541.

Frank P. Walsh, for respondent.

SMITH, P. J.

The defendant is an incorporated railway company, which had and maintained in its yard at Kansas City a track known as "No. 7 Track," and abutting against it on the north side for a distance of about 300 feet was a plank platform, the width of which was about 9 feet. On the other side of the platform were two small buildings, about 25 feet apart, which extended up to and opened upon it. In one was a hydrant, where the employés performed their ablutions, after which they went into the other, where there were lockers in which they kept their clothes. The platform had been constructed, three or four months previous to the accident, out of 3x10-inch yellow pine plank laid down longitudinally, and was uncovered. It was built for the benefit of the coach cleaners and car repairers, who cleaned coaches from it. It was also used to run wheelbarrows and trucks over in hauling ice and coal, and in jacking up cars, etc. Both as to material and structure it conformed to that which was usual and customary among railroads. At the time of the accident the upper surface of the platform was in a more or less splintery condition—a condition brought into existence by exposure to meteorological vicissitudes and the constant trundling done over it. The plaintiff, at the time he was hurt, had been in the employ of the defendant in the capacity of car cleaner for upwards of a month. One of the duties of his employment was to daily sweep off the platform, and while in the performance of this duty he noticed that the splinters or loose fibers on the rough plank "caught pieces of waste." One day after he had finished his work, and had "washed up" in the hydrant room, and while walking over the platform on his way to the building in which his street clothes were kept, his right foot came in contact with the sharp end of a splinter, five or six inches long and about a half inch wide, projecting from the surface of a plank in the platform, which penetrated through the sole of his shoe into the bottom of his foot, well forward, passing upward about two inches. The wound thus inflicted was very serious, requiring several months' medical and surgical attention. He was greatly disabled, and had not entirely recovered at the time of the trial. The shoe worn by him at the time of the injury was double-soled; the outer one having been worn through under the ball of the big toe, where the splinter penetrated. The foregoing is a statement of the salient facts of the case as disclosed by the evidence, to which the defendant interposed a demurrer.

The decisive question thus raised is whether or not the plaintiff made out a prima facie case entitling him to go to the jury. Undoubtedly the law enjoins upon the employer the duty to furnish the employé in his service a reasonably safe place in which to perform the work assigned to him, and in default of the performance of this duty he is guilty of negligence. As to what is a reasonably safe place to work, where the evidence relating thereto is conflicting, the case is one for the consideration of the jury; but where the evidence is undisputed, or all tends the same way, then it is a question solely for the court. Smith v. Coal Co., 75 Mo. App. 177, and cases cited in defendant's brief. What is meant by a safe place which the employer is required to furnish his employé to work in or about is not the obvious or patent safety or unsafety of such place, because, in the nature of things, many kinds of labor have to be performed under conditions relatively unsafe and often dangerous. Fugler v. Bothe, 117 Mo., loc. cit. 500, 22 S. W. 1113. The employer is not an insurer to the employé of the safety of the appliance with, or the place in, which the latter is required to perform the work required of him. Nor is he responsible for not providing against all possible and unanticipated happenings. Marshall v. Hay Press Co., 69 Mo. App., loc. cit. 260; Glover v. Bolt & Nut Co., 153 Mo. 327, 55 S. W. 88. He is not required to provide a place that shall be safe under all possible circumstances. Turner v. Haar, 114 Mo. 335, 21 S. W. 737. It is a part of his duty to use ordinary care to furnish a place in which to work...