Cristy v. Southwest Missouri Railroad

131 Mo. App. 266 | Mo. Ct. App. | 1908

ELLISON, J.

Defendant operates an electric railway in Jasper county, and plaintiff was' engaged in its service as a “lineman” when he received injuries which he charges to defendant’s negligence in furnishing him unsafe appliances with which to work. He recovered judgment in the trial court.

To permit the judgment in this case to stand would, in effect, abolish the rule as to contributory negligence and make of .the employer an insurer of the absolute safety of those engaged in Ms service. The evidence discloses that plaintiff was engaged in work on the trolley which was about twenty-two feet from the ground; that he used a ladder in ascending to the trolley. He alleges that the ladder was old and defective and too weak to hear his weight, and that it had been so for a long space of time. That its condition was known to defendant or might have been by use of ordinary care and oversight. That some time prior to the injury he informed defendant of the dangerous condition of the ladder, and that it promised to repair, and that relying on the promise he continued to use the ladder, until the day he was hurt when he ascended to his work and while at work it broke and threw him to the ground, whereby he was permanently injured.

The evidence of plaintiff, given in his own behalf, showed that he had been working with the ladder for about two months; that he knew it was unsafe and weak and had been patched in four different places where it had broken; that it had broken with him at one time before the injury in controversy. His evidence tends to show that the foreman knew the ladder was bad, but it does not show that he was ordered to continue to use it; nor that there was any promise of repair, except the foreman said: I will take it in and put some rods through it. But be that as it may, he describes the ladder, in such way as to show that its condition would have suggested to any one that it could not be used without imminent risk. His experience with it enabled him to know its condition better than any one else. It was a simple appliance, so old, scarred and patched as to carry on its face a warning to the most thoughtless and indifferent. According to his own evidence there was not room for two opinions. The demurrer to the evidence should have been sustained. [Blundell v. Mfg. Co., 189 Mo. 552; Dakan v. Chase Mercantile Co., 197 Mo. 238; Glasscock v. Dry Goods Co., 106 Mo. App. 667.] In Meyer v. Obear Glass Co., 129 Mo. App. 556, 107 S. W. 1041, the instrument complained of was a wagon used by the plaintiff, an experienced teamster, who knew of the defect and yet continued its use. We there discussed the authorities and principle bearing on the question here presented, and, without further comment, refer to that case for the reasons governing this.

The judgment is reversed.

All concur.