265 Mo. 587 | Mo. | 1915
The plaintiff brought this action in the circuit court of Stone county to recover damages for personal injuries alleged to have been received by him while employed as a section hand on defendant’s line of railway. Upon a trial there was a verdict for plaintiff in the sum of $1000, and a motion for a new trial was sustained, from which order plaintiff appealed to the Springfield Court of Appeals, where the action of the trial court was affirmed. From this judgment Nikon, J., dissented, and on the ground of a conflict with our decisions the case was transferred to this court.
Plaintiff when injured was employed in taking old ties from under defendant’s track. In so doing it was
The evidence shows that at the time of the injury the pick had been in use about two months and had not been sharpened for a week and a half before the injury and was very dull; that it was hard to get a dull pick to stick in the ties; that the boss had promised to have the pick sharpened the morning before the injury, but had not done so. Plaintiff states that he worked practically all the time with a dull pick, as it would grow dull two or three days after sharpening; several times before this the pick had slipped out of the wood but he had not fallen on account thereof; this was the first time that he had fallen by reason of the pick slipping out of the tie. He thought nothing about the pick being dull the morning of the injury. Several witnesses testified that the picks were usually dull, but that the section hands did not quit working on that account.
Was the testimony sufficient to authorize the submission of the ease to the jury?
There is no testimony in this case tending to show a duty resting upon the defendant to keep plaintiff’s pick, sharpened in order to prevent the latter being hurt by using it as he was at the time of the injury. It is true a conclusion is found in the testimony of some of the witnesses to the effect that a sharp pick would be a little safer than a dull one. This testimony has little probative force, because, while a sharp pick may be a little safer than a dull one, it does not follow that a dull one is not reasonably safe. The simplicity of such a tool as a pick is such that, dull or sharp, it would not under ordinary circumstances arouse- an apprehension of danger from its use. It is not unreasonable to assume that the plaintiff knew all about it, and from his own testimony the conclusion is authorized that he knew it was likely to. slip out of the tie at any time, yet he did not apprehend any danger of being injured in the event tMs occurred. In fact he says, “I never gave it any thought that morning. I never thought about getting hurt.” The pick had sliped out of the ties before and he had not been hurt,' so that the thought of injury at that time naturally did not enter his mind. If it did not
Nor is plaintiff’s case aided appreciably in assuming that defendant should have apprehended the danger of plaintiff’s falling in the event the pick should slip, for under this assumption plaintiff is chargeable with the same apprehension, and as a consequence it would have been his duty to use ordinary care to have prevented the fall. This could easily have been done by assuming such a position in striking the blow that
We fail to find any conflict between the majority opinion of the Springfield Court of Appeals in this case and that of this court in Dakan v. Chase & Son Merc. Co., 197 Mo. 238, and in Bowen v. Railroad, 95 Mo. 268, under which claim the case was certified to this court.
It, therefore, follows that the judgment of the Springfield Court of Appeals sustaining the action ©f the court below in granting a new trial should be affirmed, and it is so ordered.