Plaintiff while employed by defendant as a section hand was injured by being thrown from a moving handcar and brought this action to recover the damages sustained, alleging that the injury was the direct result of defendant’s negligence. He had judgment in the sum of $1,500 and defendant appealed.
Defendant contends that, under the facts in evidence most favorable to plaintiff, the action must fail and first we will determine the questions raised in support of that contention. Plaintiff was one of a number of laborers employed by defendant in repairing its track between Trenton and Altamont. A boarding camp was maintained by defendant at an intermediate point called Blake for the accommodation of these workmen. On the morning of the day of the injury, July 12, 1905, breakfast was served at about half past six o’clock, after which a gang of men, among them plaintiff, proceeded, on four handcars to a point about four miles east of the camp where they engaged in work. A westbound (passenger train was scheduled to pass Blake at thirty-five minutes past six o’clock, but on that morning it was late and was proceeding under orders to run five hours late, which would make it due at Blake at thirty-five minutes past eleven o’clock. The gang of laborers mentioned was in charge of a foreman, who directed all of its movements as well as those of the members thereof. At half past eleven o’clock, the foreman ordered his men to place the handcars on the track and run to camp for dinner. He took no precautions to ascertain if a train was approaching though he knew the. belated passenger train then was past due, nor did he give any orders to
The specific acts of negligence pleaded in the petition involve the following acts of defendant: First, in giving the order to place the handcars on the track and run to camp in the face of knowledge that the past due passenger train was likely to appear at any moment. Second, In running the train in a manner to menace the safety of the laborers. . Third, The failure of the foreman to send back a flagman to flag the train, should it appear, or to take any other precautionary measure to guard the safety of the men. Fourth, The act of the foreman in applying the brake without warning..
The defenses interposed are:' First, That the facts adduced do not accuse defendant of negligence. Second, Plaintiff voluntarily assumed the risk of the injury inflicted; and Third, was guilty in law of contributory negligence.
, First, we will consider the principles involved in the second defense. The rule that a master has the right to conduct his own business in his own way and may adopt such instrumentalities and follow such methods as he deems best suited to his business is restricted in its application by a very important qualification. He must always remain within the boundaries of reasonable care. In that scope, he is given full range and, though his methods may not be the best; the place he provides his servants the safest; or the tools and appliances with which he requires them to work the newest or most approved, he cannot be held liable for injurious consequences to his servants resulting from his conduct. In accepting employment, his servants are held in law to the implied agreement that they will perform his work in his way and with the means and instruments he provides and will not call him to account for injuries result
But in this State the doctrine is fairly established that in accepting employment the servant does not assume the risk of injuries directly resulting from the master’s negligence. The right to conduct his business in his own way does not give the master a license to be negligent. No human relation can give to one man the right to inflict an injury on another, either intentionally or negligently, nor may a man by contract, express or implied, relieve himself from liability for the direct consequences of his own wrongful act. As a necessary corollary, it follows that a servant neither by express nor implied contract is permitted to waive the right he has to the protection afforded by the exercise of reasonable care on the part of the master. Society has an interest to serve in the preservation of the lives, limbs and health of its individuals and an enlightened public policy will not tolerate the idea that a man may contract away a right so sacred and thus voluntarily offer his body as a sacrifice to positive wrong.
Assumption of risk, being essentially contractual, disappears from view when we find, that negligence is the producing cause of the injury and such cases cannot involve as elemental other issues than those concerned with the negligence of the master and the contributory negligence of the servant. [Shore v. Bridge Co., 111 Mo. App. 278; Stafford v. Adams, 113 Mo. App. 717, and cases there cited.] A different view was taken by the St. Louis Court of Appeals in Lee v. Railway, 112 Mo. App. 372, but in the recent case of Obermeyer v. Chair Mfg. Co., 120 Mo. App. 59, 96 S. W. 673, the Lee case in effect was overruled by that court and the principles herein stated applied.
This brings us to the question of defendant’s negligence. Was plaintff injured by a 'danger naturally inhering in an employment conducted by the master with
The use of handcars by section hands in the prosecution of their work is so general that it must be judicially recognized as a proper custom. True, it is attended by danger. The men must work at places where their foreman cannot avail himself of telegraphic information and therefore cannot know exactly of the movement of trains. Regularly scheduled trains frequently are late. Extra and special trains often are sent out, of which the foreman can have no knowledge. Natural conditions are such that whenever a handcar is on the main track its occupants must consider themselves as being in danger of encountering passing trains. Such dangers as are incidental to the customary use of these vehicles should be regarded as naturally belonging to the employment and are to be classed with the risks assumed by the servant.
But the greater the risk, the greater the vigilance demanded by the dictates of reasonable care to avoid injury. A person of ordinary care never will trust himself or those committed to his care to mere chance, where means are available by the employment of which he may overcome probable danger. Ordinary care calls for the use of the senses to discover approaching danger and for a reasonable exercise of judgment to avert it. In sending plaintiff and his fellows out to work under the direction of a foreman, defendant committed to its vice principal the performance of its duty to exercise reasonable care for his protection. The foreman had no right knowingly to order him into a place of certain and imminent peril, nor did he have the right to'subject plaintiff to risks beyond those incidental to the employment. He knew that the passenger train was past due; that it might appear at any moment and overtake the handcars before they reached camp; that, owing to the sharp curves in the track and the topographical obstructions
Concede that the foreman had no right to place the handcars in a position to interfere with the traffic on the road and should not have relied on stopping the passenger train to guard their safety, all rules must give way to the exigent demands of imminent danger. Under the humanitarian doctrine, the trainmen would have been culpable had they failed, after discovering the peril, to stop the train if by so doing they could have avoided the injury, and, if dire necessity called for the flagging of the train as the only means of escape, then it would have been the duty of a flagman to perform that act and of the trainmen to heed the signal given. We are not saying that the foreman should have stationed flagmen— that may not have been an act that would have been suggested by reasonable care — but we are saying that precautions equal to the peculiar emergency should have been adopted. If, as defendant argues, nothing' could have been done that was not done that is to say, that the car had to be run as on ordinary occasions — then, under the confronting conditions, it was negligent to attempt to make the run until after the train had passed, since escape from injury would be the result of mere accident
We cannot declare, as a matter of law, that plaintiff was negligent. His conduct also was an issue for the jury. If, unaware that the passenger train was due, the risks involved in obeying the order of the foreman to board the car, which were presented to his mind, were included within the ordinary risks of his employment, and it is a reasonable inference to say that he was justified in assuming, first, that the danger was not so glaring and imminent as immediately to threaten his safety, and, second, that he could rely on the foreman to use ordinary care during the passage to camp. After he boarded the car, plaintiff could do nothing but perform the duties of the post assigned him and avail himself of the opportunities afforded him to look and listen for an approaching train. In the light of his knowledge of the situation, the question of whether he made a reasonable use of his senses essentially is one of fact and not of law.
It is suggested that as there is no telegraph office at Blake, the foreman could not have known of the special schedule on which the train was running, and as his opportunities to know of the exact movements of the train were no greater than those of plaintiff, both were on the same plane, and under equal duty to look out for the appearance of the train as one of the incidental hazards of the employment. The answer thereto is that the master, in the person of the foreman, and the servant
In the present situation we cannot say, in law, that it Avould have been negligence per se for plaintiff to have failed to observe whether or not the train had passed. The character of his work and the situation in which he Avas compelled to perform it may have prevented him from keeping that fact in mind or from acquiring accurate knowledge concerning it, but it was the duty of the foreman to know that fact. The inequality in the position of the foreman and plaintiff prevents us from saying, as a matter of law, either that their means of' knowledge were the same, or if they were, that what Avould be .negligence in the one would necessarily be negligence in the other.
The learned trial judge committed no error in overruling the demurrer to the evidence. The views expressed sufficiently dispose of the points made by defendant on the instructions.
Finally, defendant insists that the verdict is excessive. The injuries consisted of an abrasion of the skin
It follows that the judgment must be affirmed.