Wilson v. Kansas City Southern Railway Co.

• Decision Date: 14 January 1907
• Parties: JAMES WILSON, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

99 S.W. 465

122 Mo.App. 667

JAMES WILSON, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 14, 1907

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

Cyrus Crane and George J. Mersereau for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence. No negligence was proven on the part of defendant and the risks attending the condition at the time of the injury were assumed by the plaintiff. Armour v Hahn, 111 U.S. 318; Bradley v. Railroad, 138 Mo. 302; Roberts v. Telephone Co., 166 Mo. 383; Henson v. Packing Co., 113 Mo.App. 618; Bridge Co. v. Seeds, 144 F. 613. (2) Plaintiff had no right to rely on the foreman's words of caution. Railroad v Billingslea, 116 F. 335. (3) Plaintiff's own contributory negligence defeats a right of recovery. Porter v. Railroad, 71 Mo. 77; Devlin v Railroad, 87 Mo. 550; Wray v. Power Co., 68 Mo.App. 388; Poindexter v. Paper Co., 84 Mo.App. 357; Roberts v. Telephone Co., 166 Mo. 384; Meily v. Railroad, 107 Mo.App. 470. (4) The court erred in submitting the case to the jury without any instruction on the plaintiff's behalf other than the one on the measure of damages, and failing to instruct the jury what issues were to be tried or what would constitute negligence on defendant's part. Kohr v. Railroad, 92 S.W. 1145; Allen v. Transit Co., 183 Mo. 411; Hamilton v. Railroad, 89 S.W. 893; Boyd v. Transit Co., 108 Mo.App. 306; Fleishman v. Miller, 38 Mo.App. 177; Gessley v. Railroad, 26 Mo.App. 156; Ravenscraft v. Railroad, 27 Mo.App. 623; Johnson v. Railroad, 93 S.W. 866; Magrane v. Railroad, 183 Mo. 119; Casey v. Hoover, 89 S.W. 330.

Boyle, Guthrie & Smith for respondent.

Filed argument.

OPINION

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, fifteen 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 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 employees 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. Packing Co., 113 Mo.App. 618; Armour v. Hahn, 111 U.S. 313, 28 L.Ed. 440, 4 S.Ct. 433.]

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, 35 F. 353:

"Plaintiff while in the employ of defendant, under direction of a foreman, put up a staging about twenty-eight 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, from which defendant was liable."

In its opinion the court said: "The placing the plank on the brackets without nailing it, would not constitute actionable negligence. [Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440.] That is not what the jury founded their verdict upon. The fellow-servant may have done that. What injured the plaintiff was the misleading of him into danger."

We do not consider that there was any ground which would have justified the trial court in declaring plaintiff to have been guilty of contributory negligence as a matter of law. He did not know the boards had been removed. He had only been at work a few minutes and had not observed it. The only way he could have known it was to have looked up from the ground, or to have observed it as he ascended the ladder. It would be going beyond reason to say, that plaintiff's mere failure to note the absence of the boards was negligence as a matter of law. On the other hand, it is quite reasonable to suppose, in the circumstances shown, that it would not occur to him that the roof had been disturbed in such manner.

It is next insisted that error was committed in failing to instruct the jury as to an act or acts of negligence upon which plaintiff might recover. The only instruction asked by plaintiff, or given by the court for the plaintiff, was one on the measure of damages, in which there is no reference to negligence. It was insisted at the argument that no issues were formulated and submitted to the jury and that in consequence they were not informed on the questions which they ought to determine. It has been the understanding of the bar and has ever been the practice to regard instructions in a civil case as a right which a party may demand. It has been regarded more as a privilege of which he cannot be deprived when he asks them in legal and proper form. But it has never been supposed that it was compulsory to ask them and that he must have them without regard to his desire. No harm can come to a defendant by the observance of this practice, for nothing can hinder him from asking instructions which will limit a plaintiff's right within legal bounds and which will confine him to the issues tendered by...