129 Mo. App. 679 | Mo. Ct. App. | 1908
Action by a servant against his master to recover damages alleged to have been caused by the negligence of the master. The injury occurred November 16, 1905, at defendant’s machine shops in Silvis, Illinois. Plaintiff, employed as a machinist, was directed by his foreman to remove a bolt from an engine which was undergoing repairs. The bolt, placed inside of the left forward driving wheel and used to support
The specific negligence alleged is that “defendant then and there and thereby negligently failed to furnish plaintiff with a reasonably safe appliance, tool and equipment for the doing of said Avork; and, then and there and thereby negligently failed to furnish plaintiff Avith a reasonably safe bolt punch (hammer) for said Avork; and defendant, knowing of such defective condition of said bolt punch, then and there negligently required and ordered the plaintiff to do said work with a bolt punch that was not reasonably safe. . . . Said
The answer contains a general denial and a plea that under the law in force in Illinois at the time of the injury the risk which culminated in the injury wms assumed by plaintiff as a part of his contract of employment; that under said law, plaintiff should be held guilty of contributory negligence and, as “he has no right of action or cause of complaint against it under the laws of the said State of Illinois, the State wherein his alleged cause of action accrued,” he has none in this State.
It appears from the evidence that defendant maintained a tool room at its shops in charge of a clerk who issued tools therefrom on application of the Avorkmen, that plaintiff complained to the clerk of the defective condition of the hammer at the time it was handed him, but was told that it was- the only hammer available as others suitable were in the blacksmith shop being repaired. Plaintiff accepted it with reluctance but endeavored afterwards to extract the bolt without using it. While thus at work, his foreman came up and seeing that no progress was being made “picked up the bolt punch,” according to the testimony of plaintiff, “and saw a broken chisel laying on the floor and picked that up and put it down in the bolt hole and held the bolt punch on it.” - Plaintiff struck the hammer several times with the sledge when the foreman said “let me try it.” He took the sledge from plaintiff and struck the hammer awhile when someone called him to other duties and he turned the sledge over to plaintiff
At the conclusion of the evidence offered by plaintiff, the court instructed the jury as follows: “The court instructs the jury that whatever injury plaintiff •received while in the employ of defendant, having been received in the State of Illinois, the question of whether or not plaintiff is entitled to recover of defendant by reason of snch injury is by this court to be determined by the laws of the State of Illinois as construed, held and declared by the highest courts of said State, hence the court instructs the jury that under the law and the evidence, plaintiff cannot recover. Hence the verdict must be for the defendant.” Thus instructed, the jury returned a verdict for defendant and from the judgment entered thereon, plaintiff appealed.
Plaintiff introduced in evidence a statute in force in Illinois which provides: “That the common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43d Elizabeth, the eighth chapter of 13th Elizabeth, and ninth chapter of 37th Henry Eighth, and Avhich are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.” [Ch. 28, p. 460 Hurd’s Rev. Stat. Ill., 1905.] And it was stipulated by counsel that “any decision (of Illinois) either party desires to present to the court is here considered and offered and read in evidence, and may be hereafter used in any proceedings in this case.”
Counsel for plaintiff argue, in effect, first, that the rules and principles of the common law applicable to the relation of master and servant as interpreted by the courts of this State should control the determination
Neither of these positions is tenable. The rule is settled in this State that “in a transitory common law action where suit is brought in a State other than where the injury happened, the interpretation of the common law obtaining in the State where the cause of action accrued, the lex loci will govern.” [Root v. Railway, 195 Mo. 348.] Recently in the case of Chandler v. Railway, 127 Mo. App. 34, we had this precise question before us. The plaintiff, a railroad laborer, was injured in the Indian Territory and brought suit in Missouri to recover damages alleging in his petition that his injury was the direct result of his master’s negligence. In our discussion of the subject now under consideration', Ave said, in part:
“The vital question is, Did plaintiff have a cause of action in the Indian Territory Avhich the courts of that jurisdiction, under their vícav of the law, would enforce? If he had no cause of action there, certainly he could not acquire one by entering this State. If naked Avhen he came to our border, the mere act of stepping over an imaginary line would not clothe him. His cause of action must be measured not by our own standard but by that fixed by the rules and principles recognized by the courts of the place where he was injured. If there is no law giving him a right of action*687 in the place where the alleged wrongful act Aims committed, no action can he maintained here, though the laws of this State would have given him a right of action had the same acts been committed without our boundaries. To hold otherwise would be to say that one State could prescribe rules, no matter how arbitrary, to govern persons and things in another State, and thus contravene the fundamental principles maintained by all nations that every independent State has an exclusive right to regulate persons: and things within its oavu territorial limits and that the laws: of the State or country can have no intrinsic force proprio vigore except within the territorial limits and jurisdiction of that country.” We must go to the latest decisions of the highest tribunals in Illinois to ascertain whether the injury of plaintiff, sustained in the manner detailed in his evidence, would afford, him a cause of action Avhich Avould be enforced in the courts of that State. If he has no cause of action there, he has none here.
We shall assume that the evidence introduced by plaintiff tends to show that he objected to using the defective tool, that the defendant promised to repair it or replace it with another and assured plaintiff that he could use it in safety, but even AVith these concessions, it is quite clear plaintiff has failed to make out a case to go to the jury under the lex loci delicti. The principles defining the reciprocal duties and obligations of master and servant declared by the courts of Illinois thus may be summarized: “By his contract of employment plaintiff assumed all of the ordinary hazards arising from the performance of the duties of his voluntary engagement, and when he learned, as it is admitted he did, that his work had become more dangerous by reason of the defect ... he had his election to quit the service or assume the risk arising from the defect. A servant not only assumes all the usual and known dangers incident to his employment, but also takes upon
In the course of the. opinion, the decision of the Court of Appeals of New York in Marsh v. Chickering, 101 N. Y. 396, was quoted with approval, where it was said: “A common laborer who uses agricultural implements while at work upon a farm or in a garden, or one who is employed in any service not requiring great skill and judgment, and who uses the' ordinary tools em-' ployed in such work, to which he is accustomed, and in regard to which he has perfect knowledge, can hardly be said to have a claim against his employer for negligence if, in using a utensil which he knows to be defective, he is accidentally injured. It does not rest with the servant to say that the master has superior knowledge, and has thereby imposed upon him. He fully comprehended. that the spade, or the hoe, or the ladder, or the instrument which he employed, was not perfect, and, if he was thereby injured, it was by reason of his own fault and negligence. The fact that he notified the master of the defect and asked him for another instrument, and the master promised to furnish the same, in such a case, does not render the master responsible if an accident occurs. ... A rule imposing such a liability would be far reaching and would extend the principle stated to many of the vocations of life for which it was
Further, it cannot be gainsaid that the Supreme Court of Illinois (judging from the reasoning in the opinions we have cited), would classify the defective hammer, in the present case, as a simple tool. The learned counsel for plaintiff points to the fact that it was being used to drive a bolt from its place in an engine as proof that such use was of an intricate nature, calling for the exercise of skill and training. But neither the location of the bolt nor the fact that a bolt was being driven is material to the classification of the tool. It was a. simple implement. The practice of driving a hammer or chisel with a sledge is as common as it is simple and requires no special skill. Common laborers in working on the streets, in building and repairing railroads, in quarries and in numerous other activities,
It is manifest from what we have said that the learned trial judge, in sustaining the demurrer to the evidence, rightly construed and applied the laws of Illinois. The judgment is affirmed.