Wesner v. St. Louis & San Francisco Railroad Company
| Decision Date | 02 February 1914 |
| Parties | JACOB J. WESNER, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
W. F Evans and Cowherd, Ingraham, Durham & Morse for appellant.
(1) Plaintiff is not entitled to recover, because he was engaged in repair work, making an unsafe place safe, and therefore assumed the risk. Henson v. Packing Co., 113 Mo.App 618; Nash v. Brick Co., 109 Mo.App. 605; Bloomfield v. Construction Co., 118 Mo.App. 258; Armour v. Hahn, 111 U.S. 313; Wilson v Railroad, 122 Mo.App. 667; Bennet v. Lime Co., 146 Mo.App. 572. (2) The trial court committed reversible error when it permitted plaintiff, over defendant's objection, to introduce his petition in evidence, and permitted plaintiff to read said petition to the jury as part of the evidence. Wrightsman v. Herriens, 130 Mo.App. 266; Stevens v. Crane, 116 Mo. 413; Kirkpatrick v. Railroad, 211 Mo. 80; Jordan v. Transit Co., 202 Mo. 428; Pandjiris v. Hartman, 196 Mo. 539, 547; Elliott v. Sheppard, 179 Mo. 382.
C. W. Prince and E. A. Harris for respondent.
Plaintiff sustained personal injuries while in the service of defendant and sued to recover damages on the ground that the injury was caused by negligence of defendant in failing to exercise reasonable care to furnish him a reasonably safe place in which to work. The answer is a general denial and pleas of assumed risk and contributory negligence.
The cause is here on the appeal of defendant from a judgment of $ 4000, recovered by plaintiff in the circuit court. We are asked to reverse the judgment on the ground that error was committed in the refusal of defendant's demurrer to the evidence. Counsel for defendant argue, first, that plaintiff's evidence shows he was injured while engaged in the work of making safe an unsafe place and, therefore, fell a victim to one of the incidental risks of his employment and, second, that his own negligence caused or contributed to his injury. At the time of his injury, February 2, 1910, plaintiff, who was an experienced carpenter, was engaged with other artisans in making certain alterations and repairs at defendant's freight depot in Kansas City. He had worked for many years as a car repairer and had been so employed by defendant but on the day of his injury had been ordered to work in the freight depot where some new scales were being installed and the floor was being repaired and raised to a higher level. The men worked under the supervision and direction of foreman and at first plaintiff worked at repairing the floor. Later the foreman of that work ordered him to report to the foreman in charge of the work of installing the scales and that foreman ordered him and another carpenter to tear out and remove a "protection sheet" to one of the sliding outer doors of the building in order to make room for the scales. Each side of the building, which extended north and south, had seven or eight wide doorways and the scales were being installed near the middle doorway. A heavy wooden door suspended from a rail was at each doorway and was so constructed that it could be slid back and forth along the rail. To open the doorway the door would be pushed northward along the rail which was inside and parallel to the east wall. To permit the free movement of the door and to protect freight placed near-by from being struck by it, a partition, or protection sheet as it is called in the evidence, had been built in front of the wall and parallel thereto, so that when the door was pushed back from the doorway it hung between the wall and the partition which was only five or six inches from the wall. The partition was made of boards two inches thick, six or eight inches wide, and twelve feet long, which were nailed at the bottom to a timber attached to the floor and at the top to another timber which was set against the wall and above the rail from which the door was suspended on rollers. The door was ten feet high, eight feet wide and weighed eight hundred pounds.
While plaintiff and his fellow workman were tearing away the partition and removing the planks to a place designated by the foreman, the door stood about one-third open. One of its rollers was defective and had been for a long time, so that it was not suspended from the rail but was supported by the floor and kept from falling inward by the partition. The men did not know of the defect which was hidden behind the partition and the foreman did not warn them of it. They did the work in the manner called for by the foreman's order, and under his supervision, and when the last board of the partition was being torn out by plaintiff's fellow workman, the door, on account of the defect, fell inward and struck plaintiff who was engaged in carrying the boards to the place where he had been told to take them.
In support of the contention that the injury of plaintiff was due to one of the natural risks of the employment, defendant endeavored to bring the case within the operation of the rule that where the work the servant is engaged to perform is to make safe an unsafe place, the master cannot be held liable for an injury caused by the very defect and danger the servant is employed to remedy. As we said in Henson v. Packing Co., 113 Mo.App. 618, 88 S.W. 166:
This rule has been spoken of in some of the cases as an exception to the general common law rule which enjoins on the master the duty of exercising reasonable care to furnish his servant a reasonably safe place in which to work, as has also the further rule which exempts a master from liability for an injury to his servant caused by changes in the place the servant is employed to make. [Nash v. Brick Co., 109 Mo.App. 600, 83 S.W. 90.]
The writer regards as inaccurate and illogical the view that the duty of the master to exercise reasonable care to furnish his...
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