Wilson v. Kansas City Southern Ry. Co.

• Decision Date: 14 January 1907
• Citation: 99 S.W. 465,122 Mo. App. 667
• Parties: WILSON v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

99 S.W. 465

122 Mo. App. 667

WILSON v. KANSAS CITY SOUTHERN RY. CO.

Kansas City Court of Appeals. Missouri.

January 14, 1907.

Rehearing Denied February 4, 1907.

1. MASTER AND SERVANT—INJURIES TO SERVANT —NEGLIGENCE OF FOREMAN—PROXIMATE CAUSE.

Defendant railroad company, being engaged in enlarging its roundhouse, had removed two or more of the sheeting planks from the roof leaving the tar-paper and gravel covering so that, when viewed from the outside, the roof appeared safe to walk on, though when observed from the inside the removal of the planks could be seen. The scaffolding running round the face of the building had become covered with snow and ice so that defendant's foreman in ordering plaintiff, a "rough carpenter" to do some work on the roof at a point some distance from where the ladder had been placed, directed him to avoid the scaffolding, and to go on to the roof and cross to the point he wished to reach. Plaintiff had only been working a few minutes, and without knowledge that the boards had been removed went to the roof, stepped on to the part where the boards had been removed, broke through the tar paper, fell to the ground and was injured. Held, that the negligence of the foreman in directing plaintiff how to reach his work, without warning him as to the defect in the roof, was the proximate cause of plaintiff's injury.

2. SAME—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Plaintiff was not negligent, as a matter of law, precluding his right to recover.

3. SAME—ASSUMED RISK.

The servant of a railroad company having been ordered by its foreman to go to his place of employment on the roof of a roundhouse by crossing the roof instead of by a scaffolding did not assume the risk of the foreman's negligence in failing to warn him that certain of the roof boards had been removed and the danger concealed by the replacing of the covering.

4. TRIAL—INSTRUCTIONS—DUTY TO CHARGE.

Under Rev. St. 1899, § 748, providing that either party may move the court to give instructions on any point of law arising on the case, which shall be given or refused, and authorizing the court of its own motion to give like instructions, the courts, in civil cases, are not required to charge on the law of the case unless requested so to do.

Appeal from Circuit Court, Jackson County; Hon. J. H. Slover, Judge.

Action by James Wilson against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cyrus Crane, S. W. Moore, and Geo. J. Mersereau, for appellant. Boyle, Guthrie & Smith, for respondent.

ELLISON, J.

The plaintiff was injured while engaged in the service of the defendant, and brought this action for damages, in which he prevailed in the trial court. It appears that defendant had several men, including the plaintiff, engaged in enlarging a roundhouse by extending it so as to make it of greater depth, that it might serve to accommodate engines of greater length than had been theretofore housed therein. The roof of the house was composed of rafters, sheeting planks an inch thick, sheeting paper laid over the planks, and a coating of tar and gravel over them. In constructing the improvement, or arranging for it, it became necessary to remove two or more of the sheeting planks from under the sheeting paper and gravel. The roof was thus left to appear, when viewed from the outside, to be safe for any one to walk over it. But it seems the removal of the planks could have been observed by one looking up from the inside. Plaintiff was not an expert carpenter. He had worked on bridges and might, perhaps, come under the designation of a "rough carpenter." He had only been engaged at the roundhouse a few minutes before he received his injury. There was scaffolding running along the face of the building at height of, perhaps, 15 feet from the ground, reaching to within about two feet of the roof. There was a ladder reaching from the ground to the scaffold, and from the scaffold one could easily climb onto the roof. It was desired by the defendant's foreman to have plaintiff do some work at a point down the roof or scaffold some little distance from the point where the ladder was. The walk or boardway on the scaffolding was covered with snow and ice, so that the foreman, in ordering plaintiff to do the work then in hand, cautioned him as to the danger of the scaffold, and directed him to get onto the roof and cross over to the point he wished to reach. Plaintiff went up the ladder, got onto the roof, and, while walking across, everything looking secure from the outside, he stepped upon that part where the boards had been removed, broke through the tar paper, and fell to the ground below onto some timbers, and was injured. The ladder was so placed that in ascending it one had a view of the under side of the roof and could have seen, had he looked, that the boards had been removed. Plaintiff did not look, or at least did not observe that they had been taken out. The verdict being for plaintiff, we have taken the foregoing mainly from what the evidence in his behalf tended to show.

We agree with defendant's counsel as to the risk carpenters and other workmen assume in building or reconstructing houses. The very nature of the work suggests its danger, as well as the necessity for those engaged therein to assume the risk incident thereto. We recognize the force and reason in the suggestions made at the argument that employés cannot expect to be provided with a safe place when employed to work in an unsafe place, such as, for instance, the repair of structures which have grown unsafe. Roberts v. Telephone Co., 166 Mo. 370, 66 S. W. 155; Henson v. Armour Packing Co., 113 Mo. App. 618, 88 S. W. 166; Armour v. Hahn, 111 U. S. 318, 4 Sup. Ct. 433, 28 L. Ed. 440. But in this case we have the act of the foreman which, we think, takes the case from under that rule. The foreman gave plaintiff directions about how to reach his work. In doing that he necessarily acted upon duties which he owed the defendant, and, if his action was negligent, the defendant must be liable. He acted for defendant in directing the particular work to be done. He acted for defendant in cautioning plaintiff to avoid the dangerous scaffolding. While it may not have been necessary for him to have warned plaintiff of the snow and ice on the scaffolding since there was no way to avoid seeing it, yet it was not beyond the foreman's duty to warn him of the danger in attempting to pass over the boards thus covered with snow and ice. Having warned him of the danger of the usual or natural way of reaching the place where the work was to be done, it was proper (though not imperative) to direct him some other way to reach the point, and it was negligence in him to direct a way which was unsafe, and which, from the nature of the place, would not be noticed by one unaware of its insecurity. The negligent direction to plaintiff to pass over the roof in its condition was the cause of the injury. Bane v. Irwin, 172 Mo. 306, 316, 317, 72 S. W. 522. The following is the syllabus in Heckman v. Mackey (C. C.) 35 Fed. 353: "Plaintiff, while in the employ of defendant, under direction of a foreman, put up a staging about 28 feet from the ground, firmly nailing the two planks which constituted the floor, so that he could go upon it in doing the work. During his absence, another workman, under directions of the foreman, removed one of the planks, placing another in its place, without nailing or fastening it. Plaintiff, not knowing that any change had been made, returned to his work on the staging, which let him fall to the ground, whereby he was injured. Held that, not the failure of plaintiff's fellow workman to nail the plank which replaced the nailed one, but the act of the foreman in misleading plaintiff into danger, was the cause of the injury,...