189 Mo. App. 201 | Mo. Ct. App. | 1915
Lead Opinion
OPINION.
Appellant contends that plaintiff was not entitled to have the jury pass on the case as to either of the two specifications of negligence, and that therefore its peremptory instruction should have been given. This has necessitated a review of the evidence, considered in the most favorable aspect to plaintiff. [Myers v. Pittsburgh Coal Co., 233 U. S. 184, 58 L. Ed. 906, l. c. 911.]
Briefly stated, the plaintiff’s case is as follows: He was the night foreman at defendant’s roundhouse
Other facts material to the discussion will appear throughout the opinion.
With this statement of the pleadings and the evidence in mind, let us examine the sections of 'the Federal Employers’ Liability Act which govern this case.
Section 1 of the act provides, among other things, that every common carrier by railroad while engaging in commerce between any of the States shall be liable in damages to any person suffering injury while he is -employed by such carrier in such commerce for such injury resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due td its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other -equipment. Section 3 provides that in actions brought thereunder the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. Section 4 deals with the defense of assumption of risk in such a way as to show that the defense is still good except in certain cases, and this case does not fall within the exception.
“It is settled that since Congress, by the Act of 1908, took possession of the field of the employer’s liability to employees in interstate transportation by rail, all State laws upon the subject are superseded.” [Seaboard A. L. R. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062.] Therefore, the decisions of the Federal
Appellant makes the contention that under such decisions “the servant assumes the risks arising out of a defect in the place at which he works attributable to his employer’s negligence, provided he knows (or is presumed from its obviousness to have known) of the defect, and also knows that it endangers his safety (or if an ordinarily prudent person under the circumstances would realize that it endangered his safety).” As a part of this contention it is argued that plaintiff was not entitled to go to the jury as to the specification of negligence that defendant failed to properly light the roundhouse because he assumed the risk of that negligence. For the purpose of such contention defendant must be held to be admitting that it was negligent and not to be claiming that plaintiff failed to make a prima-facie showing of negligence, but to be claiming that its affirmative defense of assumption of risk was so abundantly established that the court should have directed a verdict for it, thus declaring that defendant had amply sustained the burden of proving that affirmative defense and that plaintiff had not offered sufficient evidence in rebuttal of such defense to make an issue of fact as to which reasonable minds might differ.
The rule of the Federal courts as to assumption of risk is stated in the case of Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 93, 58 L. Ed. 521, l. c. 524: “ ‘The true test is not in the exercise of ordinary care to discover dangers, by the employee, but whether the defect is known or plainly observable by him. An employee is not charged by law with the assumption of a risk arising out of defective appliances provided by .his employer, unless his employment was of such a nature as to bring to his attention and cause him to realize and
It would seem that to one who had read the evidence in this record, in the manner in which one must under the decisions read it when determining whether a peremptory instruction should have been given for defendant, the bare statement of the rule just quoted would be sufficient to overcome appellant’s contention. It is neither pleaded nor proven that plaintiff was aware that the jack had been left on the floor of this stall in dangerous proximity to the engine or that it was his duty to be aware of such fact; and the jack was not so plainly observable that he may be presumed to have known of its presence on the floor. The hostler, .Clark, went entirely around the engine with one of the lanterns provided by defendant and did not see it. The workmen who went to the stall immediately after the injury with a torch had to hunt for it. There is no
In the ease of Seaboard A. L. Ry. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, l. c. 1070, after stating that the act recognizes the distinction between contributory negligence and assumption of risk, the court said: £ The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee ■, and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as' ordinarily prudent employees in similar circumstances would use. On .the other hand, the assumption ■of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part ■of the employee. The risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the workman — danger that must be and is •confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. 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
The Supreme Court of our own State has lately rendered an opinion in the case of Fish v. Chicago, R. I. & P. Ry. Co., 172 S. W. 340, wherein the questions.
As to the particular facts of the case before us, the instructions complained of do not contain reversible error under the law as declared by the latest cases •decided by the Supreme Court of the United States on the subject; and the instructions clearly declare the law correctly under the rule announced in the Fish case, supra, decided by the Supreme Court of our own State, wherein it was dealing directly with the question in the light of the latest decisions of the Supreme Court of the United States.
"We do not agree with appellant that the negligence of one of defendant’s employees in leaving the jack at the place where plaintiff -stepped on it was such a danger as was “normally and necessarily incident to” plaintiff’s occupation; Plaintiff did not assume the risk that might befall him because of the presence of the jack on the floor because he did not know that defendant had been negligent in that regard.
The ordinary risks of going into this stall which was insufficiently lighted without a lantern might be such as these: The track might extend an inch or two
If it was negligence not to have a light between stalls thirteen and fourteen, as plaintiff alleged, and plaintiff knew of that negligence, yet his knowledge of such negligence would not be an assumption of the risk of falling over a jack negligently left on the floor of stall fourteen by defendant concerning which plaintiff had no knowledge or information.
The condition of this stall as to light -was the same as on other occasions — a condition which was open and obvious to the plaintiff; but, if it be said that he should have carried his lantern, the answer is that his failure to do so was no more than contributory negligence because this is not one of those cases where darkness is the sole cause of the injury, and under the Federal act contributory negligence does not bar recovery; and the trial court would not have been justified in giving-
It is true, the employer in this case was not an insurer of the safety of the place. Liability, under the act, must be based on negligence. [Seaboard A. L. Ry. Co. v. Horton, supra.] Now technically speaking there is no Federal law of negligence; the Federal courts apply the law of the State where the injury occurs. [Thornton on The Federal Employers Liability and Safety Appliance Acts (2 Ed.), pp. 4-5, note.] In Missouri, it is the duty of the employer to exercise ordinary care to furnish his employee a reasonably safe place in which to do the work required of him, regard being had for the nature and character of the work. [Rowden v. Daniell, 151 Mo. App. l. c. 24, 132 S. W. 23.] And the courts hold that this duty is a continuing one. [Myers v. Pittsburgh Coal Co., 233 U. S. 184, 58 L. Ed. l. c. 910.] If there was negligence on the part of the employer in the case before us, it was in failing to exercise reasonable care to discover and rectify a dangerous condition produced by the wrong of one of its employees. The plaintiff testified that the day foreman gave him a line-up on the engine in stall fourteen to the effect that it was all right; that none of his men on the night shift did any work on the engines in stalls thirteen and fourteen except to build a fire in the engine in fourteen which did not require the use of a jack; and finally, that the machinist and helper who worked overtime the night before from the preceding day shift worked in stall twelve which was two stalls removed from fourteen. It is a reasonable inference, then, that the jack was left on the floor of the stall by some employee during the day preceding the injury, at which time the defendant saw fit to have two men employed for the express purpose of picking up tools and keeping the floors clear, besides having those two men supervised in this work, first, by the day foreman, Ryan, and also by the general roundhouse foreman, Burke.
In view of tbe fact that respondent in bis brief' admits that recovery was predicated on tbe theory that, tbe jack bad been negligently left on tbe floor of the stall for a sufficient length of time — to-wit, by a workman of tbe preceding day shift — to fasten constructive knowledge of its presence at that place on tbe defendant, and preferring to pass upon this appeal on.
Appellant complains of plaintiff’s first instruction for the reason that it entirely ignores the defense of assumption of risk. It does — except that it concluded by referring to “the next succeeding instruction and the other instructions given.” The “next succeeding instruction” makes no reference to the defense of as
Appellant’s contention that the court erred in giving plaintiff’s second instruction is disposed of by what has been said thus far in this opinion.
It is contended that the court erred in giving plaintiff’s third instruction, which is as follows: “The court instructs the jury that a servant assumes the ordinary risks incident to his employment but does not assume the risks caused by the negligence of the master, or his failure to perform his duties to his employees, and if in this case you should find that the defendant or any of its officers, agents or employees were negligent in whole or in part under the requirements set out in these instructions, and that such negligence, if any, directly caused the injury to plaintiff, then plaintiff did not assume the risks arising from such negligence, if any.” Under the ruling in the case of Fish v. Chicago, R. I. & P. Ry. Co., supra, in which our Supreme Court was dealing with the Federal Employers’ Liability Act, it is clear that the foregoing in
Appellant contends that the court should have given its requested instruction “I” — which was in fact a peremptory instruction to find that plaintiff was guilty of contributory negligence in proceeding in the manner and at the time he did without a lantern. "We think that under the evidence it would have been improper to have given that instruction. In view of the fact that it was ‘ ‘ daylight enough outside to see without a lantern” — and the fact that the lanterns were not coal oil lamps and did not give a bright light and were big at the bottom so as to exclude the light somewhat from the floor, and, according to one witness, were not used to work with but merely to keep people from running over each other — and the fact that Clark, the hostler, went entirely around the engine with his lantern and did not see the jack — and the fact that the jack was black like the floor so that after the injury, workmen had to hunt for it with a torch — and the fact that plaintiff did not know of its presence on the floor —we think the question of contributory negligence was one for the jury.
Appellant’s contention that the court erred in refusing its instruction “ J” telling the jury that if plaintiff was furnished with a lantern but proceeded in the dark without it he assumed the risk of so doing." As we have stated, this is not a case where the darkness was the sole cause of the injury. Plaintiff did not know of the presence of the thing on the floor of the stall that was to be the cause of his injury, and it is settled law that a servant does not assume the risk of that Avhich he does not know of unless it is obvious, etc.
Appellant’s instruction “K” which was also refused covered practically the same field as that traversed by its instruction “J” using different language, concluding that if plaintiff did not carry his lantern then the failure of the defendant to provide a station
Other contentions made by appellant have been examined and found to be without merit.
The question of contributory negligence was touched upon in four of the instructions which were given and defendant’s rights as to this defense were amply protected.
Upon the whole record the judgment should be affirmed. It is so ordered.
Concurrence Opinion
SEPARATE CONCURRING OPINION.
The principal ground of negligence relied on by plaintiff is the negligence of another employee in leaving a screw-jack where the plaintiff in the course of his work tripped over the same and fell to his injury. The other ground of negligence relied on in failing to have the place of the accident properly lighted is preventive, in its nature and would only enable the plaintiff to avoid the probable, and in this case the actual, consequence of the first act of negligence. The petition sets out this first act of negligence of another employee as causing his injury. He also alleges that this act of negligence in leaving the screw-jack where it was left occurred such a length of time before the accident happened, that defendant knew, or by reasonable care could have known, of same so as to have removed it before the accident. This last allegation in effect alleges additional negligence, either (1) in that defendant did not have an employee to perform the
The defendant insists that there is not sufficient evidence to establish such length of time between the act of negligence in leaving the screw-jack in the passageway and the accident caused thereby as warrants a finding of negligence in not discovering and removing the same before the accident. Granting that this is true, what difference does it make as to defendant’s liability under the Federal act in question? If defendant is liable in either event, that is, whether sufficient time did or did not elapse to charge defendant with the duty of discovering and removing the obstruction left there by the negligence of an employee, the plaintiff could charge both the original negligence in leaving the screw-jack in the passageway and the additional negligence of not discovering and removing same and recover on either according as the facts might show and be found by the jury. This is what the petition does. A finding that the defendant is guilty of additional negligence in failing to discover and remove the screw-jack within a reasonable time includes a finding that there was negligence in leaving same in the passageway in the first instance. I think that the defendant would be liable under the Federal act because of the original negligence of an employee in leaving the screw-jack in the passageway whether or not he proved the additional negligence arising from a failure to discover and remove the same within a reasonable time.
The plaintiff by his instructions predicated defendant’s liability solely on the additional negligence involved in not discovering the screw-jack, or using reasonable care to do so, within a reasonable time. In doing so the plaintiff placed on himself an unnecessary burden and restricted his right to recover within too narrow limits. If the jury had found that there was not sufficient time elapsing after the screw-jack was left in the passageway to constitute negligence in not discovering same, the defendant was, nevertheless, liable for the negligent act of its employees in leaving it
The facts of this case do not show that the act of negligence in leaving the screw-jack in the passageway, or in failing to discover and remove same, was the act of any employee under the direction and control of the plaintiff and for whose act he is responsible within the rule stated in McGrory v. Railroad (Ark.), 118 S. W. 710; Linck’s Adm’r v. Louisville & N. R. Co. (Ky.), 54 S. W. 184; Minster v. The Citizens’ Ry. Co., 53 Mo. App. 276, 280; Moore v. Jones (Texas), 39 S. W. 593; and Evans v. A. & P. R. R. Co., 62 Mo. 49. I do not say, however, that the rule announced in these' cases, or some of them at least, is not applicable to the; Federal act in question.
Under this view of the case it is no defense that the screw-jack may have been left in the passageway by workmen of the day shift who continued their work at night. If the screw-jack was left in the passageway by these workmen, this fact would shorten the time for discovering the danger, but defendant’s liability is not dependent upon that fact. It was not plaintiff’s duty to inspect and clean up after such men quit work and see that no tools were left by them constituting danger to himself or other workmen and such negligence is not his.
While some of the language in Johnson v. Kansas City Bolt & Nut Co., 172 Mo. App. 214, 157 S. W. 665, is to the effect that, where the master’s negligence, in not discovering and rectifying the dangerous condition produced by the negligent act of a fellow servant, intervenes in the chain of causes producing the injury, it becomes the proximate cause; yet, the holding there is no more than that the master’s negligence thereby combines with the negligent act of the servant and for the
As there is little question but that the negligence of the employee in leaving the screw-jack in the passageway was the real cause of plaintiff’s injury, the question of defendant’s liability therefor under the Federal act is the principal question in the case.