166 Mo. 370 | Mo. | 1902
Action for $11,000 damages, for personal injuries received by the plaintiff on September 22, 1898, while in the employ of the defendant, as a lineman. Upon a trial, in the circuit court of Buchanan county, the plaintiff suffered a nonsuit with leave, which that court afterwards set aside, and from which ruling the defendant appealed.
The petition alleges that the defendant, as a part of its plant, has a lead or line of wires in the city of St. Joseph, running from the south part of Eleventh street to and through South Parle; that such wires are suspended by cross-arms, attached to poles, about thirty feet high, and placed at intervals of about one hundred feet; that the cross-arms are made of wood, about two and a half inches wide, about four inches deep, and about'eight feet long, and are fastened to the poles about twenty feet above the ground; “that this plaintiff was employed by the defendant on said twenty-second day of September, 1898, to fix and securely fasten the wires of said lead to the cross-arms above described, and to tighten the wires on the cross-arms above defendant’s where they sagged down upon those of defendant; that in pursuance of his duties on said day, he was negligently ordered to get upon one of said poles and cross-arms on said above-described line or lead in South Park, a suburb of the city of St. Joseph, as aforesaid, by defendant, acting through its foreman and manager in charge of this plaintiff and other men working with plaintiff on this line or lead on said day; that in order to do the act and perform the work required by defendant, plaintiff ascended to the top of said pole and was compelled to stand upon the cross-arm above described of said pole; that said cross-arm of wood had negligently been placed upon said pole in a rotten, unsafe condition and remained there two years or more and was or had negligently been allowed to become rotten, dan
The answer admits the incorporation of the defendant and that the plaintiff was in its employ as a lineman at the, time he was injured; denies generally the allegations of the petition, and pleads affirmatively, first, that the injury was occasioned by one of the hazards or perils ordinarily incident to the employment of a lineman in the defendant’s service, and, second, contributory negligence. The reply is a general denial.
The evidence showed the following facts: Plaintiff was thirty-four years old at the túne of the accident, and for eight years prior thereto had been working as a lineman for the Western Union Telegraph Company, the Missouri Electric Light Company, of St. Louis, and at different times for the defendant. He was perfectly familiar with the duties of a lineman, and of the risks incident to that work. He knew how to test a pole or cross-arm before going upon it to ascertain whether it was rotten or sound, safe or dangerous. He knew that the life of a cross-arm or a pin in a cross-arm was from six months to six or even ten years; and that they are liable to dry rot, and that no one can tell how long one will last. He had worked on this same line and upon this same pole and cross-arm and had put this same peg or pin in this same cross-arm and strung a wire to it, during the summer immediately preceding the accident. He knew that the tests for ascertaining whether a cross-arm was sound or rotten were
I.
It is not denied in this case, for the law is too well settled to admit of discussion, that it is the duty of the master to furnish to the servant a reasonably safe place and reasonably safe appliances on which and with which to do the work required of the servant, and, conversely, it is equally well settled that it is the duty of the servant to “take ordinary care to learn the dangers which are likely to beset him in the service. . . . He must not go blindly or heedlessly to his work, when there is danger. He must inform himself. . The servant is held, by his contract of hiring, to assume the risk of injury from the ordinary dangers of the employment; that is to say, from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part. He has, therefore, no right of action, in general, against his master for an injury befalling him from such a cause. His ■right to recover will often depend upon his knowledge or ignorance of the danger. If he knew of it, or was under a legal obligation to know of it, it was part of his contract, and he can not, in general, recover.” [Thomas v. Railroad, 109 Mo. l. c. 199; Price v. Railroad, 77 Mo. 508; Steinhauser v. Spraul, 127 Mo. l. c. 562.]
“The servant when he enters the employment of his master assumes not only the risks incident to his employment, but all dangers which are apparent and obvious as a result thereof. The master is no insurer against all accidents that may overtake or befall the servant in his employ.” [Nugent v. Milling Co., 131 Mo. l. c. 245.]
“If the servant, before he enters the service, knows, or if
In Steinhauser v. Spraul, 127 Mo. l. c. 562, it was said: “Again, no principle is more frequently enunciated, or more often applied in the adjudicated cases, than that which holds that an employee, in engaging in the service of another, assumes the risks incident to such employment, and this is especially true of seen dangers and patent defects. Where ordinary inspection and carefulness will enable the employee to avoid the danger, there he will be required to use such inspection and carefulness. 'But it is held that, wherever the employee’s means of information are equal to or greater than those of his employer, the employer will not be liable in case of injury from a defect of that sort. But this is, perhaps, little more than to say that the servant, as well as the master, is bound to ordinary care. For patent dangers or defects, the master, as a rule, is not liable, and in many cases it has been held that they need not be pointed out, even to minor employees, if the latter be capable of discerning them.’ [Beach on Contrib. Neg. (2 Ed.), see. 359.”]
In Junior v. Electric Light Co., 127 Mo. l. c. 83, it was said: “The facts in this case bring it within the familiar principle that if a servant, capable of contracting for himself, and with full notice of the risk he may run, voluntarily undertakes a hazardous employment, or to place himself in a hazardous position, or to work with defective tools or appliances, the
The case of Flood v. Western Union Telegraph Co., 131 N. Y. 603, is peculiarly apposite to the case at bar in its essential features. In that case the New York Court of Appeals, speaking through Earr, C. J., said: “The plaintiff seeks to enforce liability upon the defendant for the death of the intestate because of its negligence as to the cross-arms which broke under his weight. We have carefully read and weighed the evidence contained in this record and are unable to find any showing of culpable negligence adequate to sustain this judgment.
“The defendant did not insure the safety of its employees. It was bound only to use reasonable and ordinary care to provide for them a safe place to do their work,, and they assumed the ordinary risks of the employment in which they were engaged. The cross-arms on telegraph poles, manifestly from their irsual size and strength, are not intended to bear the whole weight of any person, and yet the evidence shows that persons engaged in fixing them and placing wires upon them, do sometimes rest their weight upon them. It must always be a hazardous venture for a man to sit on the outer end of one of these cross-arms engaged in pounding near the end with a hammer. When the arm is new and perfect this may be done 'with safety. But it must always be attended with great danger, and it is unnecessary, as the work can be done without resting the whole weight upon the arm.
“There was no negligence in furnishing and putting up this arm originally. It was of the material and of the size and apparent strength and safety then in use by all telegraph companies, and, so far as appears, such arms have been found adequate for every purpose. For some time before the accident the defendant had been using larger and stronger arms to carry heavier wires, and only for that purpose. There was a system of inspection for the arms when purchased, and it does
“This arm had been in nse for about six years, and during all that time had perfectly answered its purpose. There was no proof showing how long such an arm ought to last or be used. The defendant had a system of inspection which appears to have been all that was practicable. Its inspectors went along the line of telegraph poles and wires, and carefully looked at them and tried the poles to see if they were still strong and adequate. They were provided with arms so that if they discovered any that were insufficient they could replace them. They were not expected to climb up every pole and examine the arms thereon. Such an inspection would be manifestly impracticable and unnecessary. The linemen all discharge their duties in the daytime. They have frequent occasion to climb the poles and work about the arms, and obviously they are the persons who are expected to see the condition of the arms, and if they find them insufficient to replace them, or to report the fact. It is the obvious duty of every lineman, before going upon one of these arms, many feet above the earth, to inspect it for his own safety.”
The case of Bergin, Admr. of Delaney, v. Southern, etc., Telephone Co., 70 Conn. 54, is also very similar to the case at bar. In that case it was said: “Delaney was an experienced lineman, acquainted with the duties and dangers of his employment. As against the telephone company, his negligent failure to perform one of the duties of his employment must defeat a recovery for an injury caused by such failure.
“The relation of Delaney to the Electric Eailroad Company was different. As he was not their employee, he was under no contract duty to test their wires or circuit breakers. Under different circumstances he might have assumed that the electric company was performing its duty, and using suitable
“The defendant Electric Eailroad Company can be only liable in this action for an injury caused by its negligence, to one who was himself in the exercise of ordinary care. Its negligence did not excuse Delaney from exercising such care to avoid an injury. Applying that test to the conduct of Delaney, namely, the care which a person of ordinary prudence and judgment should have exercised under similar circumstances— and we have no reason to think any different standard was applied — the trial court has found that he was not in the exercise of due care, as alleged in the complaint, and that his negligence essentially contributed to cause his injury. This conclusion of the court is final.”
There is not a particle of evidence in this record to sustain the allegation of the petition that the work was being done under the direction of defendant’s foreman, or of any superior officer. The plaintiff and Gates were alone and were sent to repair the line and fix it up. They were left free to adopt
This case is clearly distinguishable from the cases cited and relied on by the plaintiff, in this, that in those cases the servant injured was not charged with the duty of ascertaining and repairing the defects in the appliances, but was using appliances furnished him by the master for use in the ordinary course of his employment, while in this ease the plaintiff was charged with the duty and engaged in the work of inspecting and repairing the master’s appliances.
The plaintiff therefore assumed, by his contract of employment, all the risks incident to the performance of the work upon which he was engaged. The accident was caused by one of those risks. The plaintiff, therefore, has no claim against the defendant.
In Haven v. Railroad, 155 Mo. 216, it was held that this court will not reverse the ruling of a trial court in granting one new trial, unless no verdict in favor of the party at whose instance the new trial was granted could be allowed to stand. [Ibid. l. c. 229.] This case falls within the exception to the rule stated.
Eor those reasons the judgment of the circuit court setting aside the nonsuit is reversed and the cause remanded to that court with directions to overrule the motion to set aside the nonsuit.