Williams v. Pryor

• Decision Date: 01 December 1917
• Docket Number: No. 20077.,20077.
• Citation: 272 Mo. 613,200 S.W. 53
• Parties: WILLIAMS v. PRYOR et al.
• Court: Missouri Supreme Court

200 S.W. 53

272 Mo. 613

WILLIAMS v. PRYOR et al.

No. 20077.

Supreme Court of Missouri. In Banc.

December 1, 1917.

Rehearing Denied December 22, 1917.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action by Allega Williams against Edward B. Pryor and others, receivers of the Wabash Railroad Company. Judgment for plaintiff, and defendants appealed to the Kansas City Court of Appeals, which certified it to this court. Affirmed.

J. L. Minnis and N. S. Brown, both of St. Louis, and J. A. Collet, of Salisbury, for appellants. H. J. West, of Brookfield, and Roy W. Rucker, of Keytesville, for respondent.

GRAVES, C. J.

This case reaches this court by a proper certification of the Kansas City Court of Appeals, it being recited in the certificate of that court that one of the judges of that court deemed their opinion to be in conflict with the law as announced by this court in the case of Fish v. Railway Co., 263 Mo. 106, 172 S. W. 340, Ann. Cas. 1916B, 147.

Judge Johnson of the Court of Appeals fairly outlines the case in this language:

"This is an action for damages for personal injuries plaintiff alleges he sustained in consequence of negligence of defendants, his employers, who, at the time, were receivers of the Wabash Railroad Company. Plaintiff, a laborer, was employed in the work of tearing down a bridge on the road near Ottumwa, Iowa, and was attempting to draw a bolt from a bridge cap with a claw bar when the claws slipped from their hold on the bolt, causing plaintiff, who was bearing down on the free end, to lose his balance and fall to the ground, a distance of 12 feet. The petition alleges `that said claw bar was caused to slip on said bolt and the plaintiff was caused to be hurt and injured by reason of the claws on said bar having become battered and worn to such an extent that they would not take a firm hold on the bolt that was being drawn, and that because of such battered and worn condition of said claws the said claw bar was rendered dangerous and not reasonably safe for the work in which plaintiff was engaged * * * and plaintiff, without any fault or negligence whatever on his part, was unaware of the battered and worn condition of said claw bar, and did not know that the same was unsafe for use in drawing said bolt,' and the specific negligence averred is that defendants `negligently and carelessly failed and neglected to furnish plaintiff a reasonably safe claw bar with which to work, and negligently furnished him a claw bar with which to draw said bolt that was old and battered and worn as aforesaid and unfit for the purpose for which it was provided and not reasonably safe for the work in which the plaintiff was engaged at the time he was injured,' etc. The defenses interposed by the answer are a general denial and pleas of assumed risk and contributory negligence. The jury returned a verdict for plaintiff for $5,000, and after their motions for a new trial and in arrest were overruled, defendants appealed.

"The pertinent facts disclosed by the evidence of plaintiff may be stated as follows: Plaintiff, who was 21 years old and had been reared on a farm, entered the service of defendants as a common laborer in August, 1915, and worked for them until his injury in November of that year, his work being that of `helping build steel bridges and taking down old ones.' Shortly before his injury the foreman in charge of the work of tearing down an old bridge ordered plaintiff to draw a certain drift bolt which was about 15 inches long and three-fourths of an inch in diameter from the bridge cap, a timber 16 feet long and 12 by 12 inches in its other dimensions. First, plaintiff cut out the wood from around the bolt with an ax, then he struck the bolt sidewise with a maul to loosen it, and then he took up the claw bar which was one of the tools provided by defendants, and, so far as the evidence discloses, the only claw bar at hand, and proceeded to draw the bolt out of the cap. The claws projected forward from the heel of the claw bar which rested on the cap and served as the fulcrum. On the first application of the power exerted by plaintiff, who stood on the cap and pressed downward on the free end of the bar, the claws pressed upward on the head of the bolt and pulled the bolt out of the wood to the limit of the action of the claws. Then plaintiff raised the free end of the lever, inching the claws down the shank of the bolt and then by twisting or turning the bar in his hands endeavored to grasp the shank tightly between the claws so that the next application of power would be exerted at the place where the bolt was being held in that grip. The men called this inching process `Arkansawing the bolt,' and the evidence of plaintiff tends to show that such was the customary as well as the most expeditious, method of pulling bolts, while the evidence of defendants is to the effect that the customary and safer method was to block up under the heel after each pulling of the bolt, so that the claws at each application of the power would press directly against the bolt head and be held thereby from slipping. Plaintiff states that in `Arkansawing the bolt' he endeavored by turning the bar to obtain a firm hold on the shank, but that the claws had become so rounded and dulled by long usage that they could not be made to grip the shank securely and slipped from their hold when plaintiff pressed downward on the handle, causing him to lose his balance and fall from the cap to the ground. Further, plaintiff states that to discover the defect required the inspection of the underside of the tool, and that in obeying the order of the foreman to draw the bolt he did not pause to make such inspection but proceeded to use the tool without any but a casual inspection of its top surface, which did not reveal the presence of the defect. The railroad on which plaintiff was working was engaged in interstate commerce, and the case was properly tried by both parties on the theory that the cause of action, if any injured to plaintiff, fell within the purview of the federal Employers' Liability Act [Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916, §§ 8657-8665)]."

The Court of Appeals held that the plaintiff assumed the risk of using a simple tool, where the condition thereof was open and obvious. If further details of the evidence become necessary, they can best be given in the course of the opinion.

I. The assignment of errors in this court are: (1) Refusal of a demurrer to the testimony at the close of plaintiff's case; (2) refusal of such demurrer at the close of the whole case; (3) refusal to give instruction 3 as asked by defendant and in modifying same and giving it as modified; (4) refusal to give instruction No. 7 for defendant, and (5) refusal to give instruction No. 12 for defendant.

On examination of these assignments of error in the light of the pleadings, proof, and instructions, the real questions are: (1) Was the negligence of defendant shown by the proof, and (2) did the plaintiff assume the risk, when he did the act in the manner in which he did it, and with the tool used? Under the federal law, contributory negligence is not a bar to recovery, but may be considered by the jury in determining the damages. So that if defendants are right in urging their demurrer to the testimony, it must be upon one or the other grounds mentioned above, i. e., no negligence on the part of the defendants, or plaintiff assumed the risk, and that one or the other of these appear as a matter of law.

II. The subjects of assumption of risk and contributory negligence are often confusedly discussed in the cases. In Fish v. Railway, 263 Mo. 106, 172 S. W. 340, Ann. Cas. 1916B, 147, this court clarified the atmosphere to the extent of holding that there could be no assumption of risk, except in cases where the relation of master and servant existed, which relation might be by either an express or an implied contract. The instant case is one which falls within the class of cases in which the doctrine of assumed risk may be invoked. The real question in the case is whether or not the things charged to the plaintiff herein, by the pleadings and proof, are things properly classed under the subject of assumed risks, or are they mere matters of contributory negligence.

We start with the rule that where one employs another to do a given work (thus creating the relationship of master and servant), and latter (the servant) assumes the ordinary and usual risks incident to such employment. We then advance to another simple and well-defined rule, that it is the duty of the employer to furnish to the employé a reasonably safe place within which to perform the work, and reasonably safe tools with which to perform it. These duties are what we denominate nondelegable duties. They rest upon the master, and if he leaves those duties to be performed by another he is responsible for the performance. In other words the master can never shift liability by saying that he had a competent person do these things for him. They are nondelegable duties in the sense that the master is always responsible for the faithful performance of them.

In the instant case the master furnished to the plaintiff a claw bar which, according to the evidence of the plaintiff, was not reasonably safe for the performance of the work assigned by the master to the servant. At least the jury could have found from the evidence that the tool as furnished was not reasonably safe for the performance of the work. The question then of the master's negligence was one for the jury, and the jury has found that the master was negligent. The simple tool doctrine urged by the defendant we discuss later. What we now want to make clear is the fact that there is evidence in this record from which a jury might well find that the master was negligent in furnishing the claw bar used by the plaintiff, unless the simple tool doctrine changes the situation,...