191 Mo. App. 202 | Mo. Ct. App. | 1915
Respondent was employed in appellant’s roundhouse at Brookfield, Missouri. When not engaged in operating the turntable, bis duty was to wipe engines. In doing tbis a ladder was used on wbicb to ascend and descend from tbe engine; and perhaps tbe employee stood on tbe ladder at times during tbe wiping process.
While thus working on an engine, be received a signal to go at once to tbe turntable. He descended tbe ladder and, in stepping from tbe last rung to tbe ground, bis right foot trod upon a piece of hose three or four inches in diameter lying on tbe ground, whereby bis ankle was turned and badly sprained. Tbis suit for damages resulted, in wbicb it was charged that tbe defendant was negligent in placing and permitting said piece of hose to remain on tbe ground at a place much used by employees in working about said engines whereby said place was rendered dangerous and unsafe.
Tbe petition alleged, and tbe evidence showed, that tbe defendant was an interstate common carrier by railroad and that plaintiff was in its employ and engaged in interstate commerce at tbe time. Tbe suit is therefore under the Federal Employer’s Liability Act (35 Stats, at Large, p. 65, cb. 149, as amended by Act of April 5, 1910, 36 Stats, at Large, p. 291, cb.
In view of the verdict in plaintiff’s favor, we must accept the evidence in plaintiff’s behalf at its full face value, and it shows that the hose on which plaintiff stepped was a piece of “scrap” or “junk” hose about six or seven feet in length. It had been used in “blowing out” engines but had been run over and cut off, so that it was no longer fit for use but should have gone to the scrap heap. It was lying on the ground at the side of the engine on which plaintiff was at work and had been lying there for several days. The evidence further shows that defendant’s rules required the foreman to see that the house was kept clean and in good order and. that the workmen performed their duties properly. He had under him five men whose duty it was to “pick up all material and everything in the roundhouse and sweep the floors every day and clean up” and it was the duty of these men, if there was a piece of scrap hose lying on the ground, to pick it up and put it on the scrap pile. While there was evidence that the hose used in blowing out an engine was attached to a hydrant midway between two engines in their stalls, and that such hose lay on the ground until .the blowing out process was over, yet the evidence was that as soon as the process was over, the hose was taken off to another engine; it was not allowed to remain on the floor indefinitely. Nor is there any evidence that during the time the hose was in use it was lying close to the engine where the wipers worked; but there was evidence that the piece of scrap on which plaintiff stepped “had been thrown back there,” that is, close to the engine-side where it was trod upon by plaintiff when he stepped from his ladder.
From the foregoing resume of the evidence in plaintiff’s behalf, we' think it clearly appears -that there was sufficient evidence to support a finding that defendant was negligent in allowing the piece of scrap
This brings us to the matters raised in defendant’s answer, namely, contributory negligence and assumption of risk. With regard to contributory negligence, the Employer’s Liability Act abrogates the rule which allows it to bar a recovery, and merely permits such negligence to diminish the damages. [See Sec. 3 of said act.] But said act leaves the rule of “assumption of risk” still in force except in the case of a violation by the carrier of a Federal statute. So that if plaintiff in this case was guilty of contributory negligence that will only result in a diminution of his recoverable damages. But if he assumed the risk it will defeat his recovery entirely.
Upon this branch of the case the evidence of plaintiff indisputably shows that the piece of scrap hose had been.lying, where plaintiff stepped on it, for several days. Plaintiff admitted that he had seen this particular piece of hose there several times; he had seen., it for several days and knew it was lying there; that he himself set the ladder right down by the hose; that the injury occurred about three o’clock in the afternoon of October 13, 1913, and he could have seen the hose as he came down the ladder if he had looked for it.
It would seem that the act of plaintiff in setting, the foot of the ladder down close by the scrap of hose he knew was there, and which he could have easily kicked out of the way, and his act in coming down the ladder and stepping off to the ground without looking where he stepped, would constitute contributory negligence, since these were positive, affirmative acts on his part together with the neglect or omission to observe care for his own safety, and that these acts without care — i. e. negligence — “contributed” to his-injury, that is, it joined with the negligence of defendant in bringing it about. If now it was contributory neg
But, if plaintiff occupied a broader status and if, by reason of his knowledge of the long continued presence of the hose-scrap, of which he never complained, he assumed the risk of injury arising therefrom, then his right of recovery is defeated. In which category is plaintiff to be placed in this case?
It would seem that the answer to this question would all depend upon what is considered as constituting assumption of risk. If we regard that rule as meaning that plaintiff, knowing of the defect and appreciating the danger, assumes the risk thereof even though the defect arises from the defendant’s' negligence, then perhaps plaintiff should be held to have assumed the risk in this case. But if we follow the rule that plaintiff does not assume the risk of a defect arising from defendant’s negligence, then plaintiff should be said to have been merely guilty of contributory negligence.
The rule that a servant assumes the risk even of those dangers arising out of the master’s negligence provided the servant knows of and appreciates them and he continues to work without complaint, is the one adopted by the Federal courts. [Seabord Air Line Railway v. Horton, 233 U. S. 492, l. c. 504-5.] Justice Pitney here says, “But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unléss defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.” .. . . “When the employee does know of the defect, and appreciates the risk that is attributable to it, then
But this is not the rule in Missouri. [George v. St. Louis, etc., R. Co., 225 Mo. 364, l. c. 407; Clippard v. St. Louis Transit Co., 202 Mo. 432, l. c. 446; Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176; King v. St. Louis, etc., R. Co., 143 Mo. App. 279, l. c. 298; O’Brien v. Western Implement Co., 141 Mo. App. 331.]
Hence the question arises which of these two rules concerning assumption of risk shall be applied in this case wherein the rights of litigants, under a Federal law, are to be adjudicated? In the above ease of Seaboard Air Line Railway v. Horton, 233 U. S. 492, l. c. 507, it is said that the Employer’s Liability Act, where none of the Federal Safety Acts are involved, leaves the matter of assumption of risk ‘ ‘ open to the ordinary application of the common-law rule.” What does this mean? Does it mean the common-law rule as determined by the courts of the various States or the common law as interpreted by the Federal courts ? It would seem that since the Employer’s Liability Act is a general law enacted by Congress to regulate the responsibility of interstate common carriers by railroad to their employees engaged in carrying on commerce between the States, the purpose of Congress was to establish one general uniform law in that regard, and that, therefore, not only the construction of that Act by the Federal courts but the rules of decision adopted therein in applying and enforcing the Act, should be binding upon the State courts. It is so held in regard to the liability of an interstate common carrier to an
It is true, with the exception noted in Smith v. Alabama, 124 U. S. 465, l. c. 478, there is no Federal common law. Nevertheless, the Federal courts determine for themselves what the common law is. And this is especially true when they are passing upon matters of general law in which case they do not feel called upon to accept the views of State courts, but exercise an independent judgment even as to what .is
It is no doubt true that in many cases the Federal courts and the State courts are independent of each other in their views of what the .common law is. And in those cases where the Federal courts lean toward the construction or rules adopted by the State courts or apply State laws, it will he found that the right or cause of action involved arose out of the law of the particular State involved. Such for example, was the case of Federal Lead Co. v. Swyers, 161 Fed. 687. The court in this case intimated that if the highest court in the State had construed a statute as taking away the defense of assumption of risk, it might have followed such construction. But the case involved merely a cause of action arising in the State; it did not arise under a Federal law affecting a general right applicable to all persons within the' States coming within the limits of commerce affecting them all. And while the State courts, in passing on matters of purely State concern, are independent of the National courts in their view of what the common law is, yet it is hard to see how a State court, when called upon to apply and enforce a Federal statute, can .disregard the rules of decision in regard thereto laid down by the Federal courts and follow its, the State court’s, own rules not in harmony therewith. If it can, then the responsibility of an interstate carrier to its employees in interstate commerce will vary according to the view the various States may take of the common-law rule concerning assumption of risk. But Congress soug’ht to regulate this responsibility, and having acted in the matter, it established a policy for all, and the liability as determined by the several States is superseded by
However, in the case of Fish v. Chicago, etc., R. Co., 172 S. W. 340 (not yet published in the official State reports), a case under the Federal Employer’s Liability Act, our State Supreme Court held that the meaning and effect of the United States Supreme Court decision in the Horton case, supra, wherein it said the matter was left “open to the ordinary application of the common-law rule” meant the common law as interpreted and enforced in the respective States. At page 345 the court say: “The effect of that decision and of. the Act construed therein, and of the previous decision of the Supreme Court devolving concurrent jurisdiction upon the courts of the several States to enforce the provisions of said Act, is to require them, in passing on the defense of assumption .of. risk, to apply as a standard the common-law rule on that subject. This points a plain pathway — that of the common law as adopted, interpreted, expounded, and enforced in the respective States.” The court then goes oh to show that the common law, as administered in Missouri with regard to assumption of risk, is that the servant does not assume the dangers or perils caused by the negligence of the master, and that when' the injury
The right sought to be enforced herein is a right under a Federal law, which gives jurisdiction to State courts to try such cases, with an appeal or rather writ of error lying to the Hnited States Supreme Court from the judgment of the court of last resort having jurisdiction where the action was instituted. [Missouri, etc., R. Co. v. Elliott, 184 U. S. 530; Gulf, etc., R. Co. v. McGinniss, 228 U. S. 173.] It does not seem that, in a suit under a general Federal law intended as a uniform regulation affecting carriers and its employees engaged in interstate commerce, a State court will be allowed to apply its own particular rule which is not in harmony with the Federal rule. Especially does this appear to be so when a writ of error can be taken to the Federal court of last resort whose duty it will be to apply and enforce a general Federal law having to do with such an exclusively Federal subject as interstate com
We defer, however, to the views of our State Supreme Court on the matter in question and are thus relieved of the necessity of deciding whether the Federal or the Missouri rule as to assumption of risk should be followed in a case under the Employer’s Liability Act, or whether there is any room herein for the application of the Federal rule. So that without regard to whether plaintiff’s course of conduct in this case be merely contributory negligence, or whether it did not also amount to an assumption of risk under the Federal rule since he clearly knew of the hose, its location and the danger arising therefrom, we hold that the trial court properly overruled defendant’s demurrer to the evidence.
Plaintiff’s instruction on the measure of damages told the jury that in case they found the plaintiff guilty of contributory negligence, “then such damages should be diminished by the jury in proportion to the amount of negligence attributable to him, as compared with the negligence, if any, attributable to the defendant.” This is erroneous. [Norfolk, etc., R. Co. v. Earnest, 229 U. S. 114, l. c. 122.] The Supreme Court says that the statute means that where the negligence causing the injury is partly attributable to the employee and partly to the carrier “he shall not recover full