90 Mo. App. 31 | Kan. Ct. App. | 1901
The plaintiff was an employee of defendant as a section hand under the immediate control of one of defendant’s section foremen. It appears that a handcar was used by the section men in going over the track and also a “level-board.” That this level was carried under the platform of the car by being placed on two iron bars which extended across the car under the platform. That while going over the track in the service of the company, at about the speed of ten or twelve miles an hour, one end of the level fell off the bars (the other end remaining in place) and caught under one of the ties of the track, thereby throwing the car from the track and injuring the plaintiff. There was a verdict for plaintiff.
There are but two questions presented. One relates to the alleged failure of the petition to state a cause of action; and the other is on a failure of proof. Both questions really relate to the same supposed defect.
There was no demurrer to the petition and it is attacked now as failing to state any cause of action, in that it does not allege any knowledge on defendant’s part that the aforesaid mode of carrying the level was unsafe or dangerous; nor that the' plaintiff was ignorant of its being dangerous. The petition as copied into the abstract does show an allegation that the foreman aforesaid “carelessly and negligently ordered the
In answer to the second objection, we find it to be true that the petition does not state that the plaintiff was ignorant of the danger in carrying the “level-board” as it was carried. It is not necessary that it should so state. That the servant should be ignorant of the danger is not a necessary requisite, as a matter of law, to his recovery. Hamman v. Cen. Coal & Coke Co., 156 Mo. 232. In that case Judge Burgess said: “The evidence was clear that deceased was an experienced miner, and that he knew the condition of the roof, but it does not necessarily follow that it was his duty to abandon his work, if it was true, that defendant had been requested by. him to furnish props for the room, had promised to do so, and failed, unless the roof was so glaringly defective and unsafe that a man of ordinary prudence and caution would not have worked in the room, or unless it was so dangerous as to threaten immediate injury. Mere knowledge that the roof was unsafe, ‘and that risk was to be incurred in working under it’ was not, as a matter of law, sufficient to defeat the plaintiff’s action, if the danger was not such as to threaten immediate injury, or if it was reasonable to suppose the room ‘might be safely used by the exercise of care.’ Smith v. Little Pittsburg Coal Co.,
The chief authorities relied upon by defendant are the cases of Epperson v. Postal Tel. Co., 155 Mo. 346, and Thompson v. Railway, the latter decided by this court, in which we followed the Epperson case. Later on, we set that decision aside. The rule stated in the later case of Hamman v. Coal Co., supra, supported by what was understood to be the law prior to the Epperson case, must govern us.
An examination of the entire record satisfies us that the judgment should be affirmed and it is so ordered.
