*1 of the peril until it the movement of the Chevrolet indicated might continue eastward The part into said the intersection. peril not said so indicated about to enter until the Chevrolet was part of Sixth Street. driver the truck saw time the .At northeasterly twenty moving Chevrolet within a direction feet A On avoided. toward truck. collision could have been noting Chevrolet, of the truck said movement of the the driver instantly near swerved to the east and' the collision occurred almost tracks. It Monterey and between the the north curb line of Street all that, of the truck did within peril arising, the driver clear may be stated In power avoid collision. this connection brakes pavement to show that the truck marks on the tend that the Monterey. curb north line truck was near the applied were when the material, is not truck moved after eollisioni The distance the driver arose the peril at conclusively appears that the time collision. every avoid the possible effort to of the truck made concur, All It is ordered. so reversed. judgment should be J., except Kays, absent. Louis, of St. Association Railroad Terminal Webber
Clarence v. (2d) 863. S. W. Appellant. Corporation, —70 One, April 1934. Division *2 Pierce, T. M. J. appellant. Howell and Walter N. Davis L. for Louis E. Miller and John F. Gibbons respondent. *3 by reassignment, case, coming
HYDE, to the writer C.—This Act damages, Employers’ Liability an action for Federal under the injuries resulting (U. A., 45’, 51-59), personal S. C. Secs. Title defendant, painting employee plaintiff was, a fall an while Missouri and bridge, Mississippi River between the Eads across the Federal was admitted de- applicability Act Illinois. The *4 and, judgment $35,000,. from fendant. Plaintiff had a verdict for appealed. thereon, defendant has entered following by part of the negligence upon relied is shown The verdict, authorizing a to-wit: plaintiff’s Instruction No. 1‘ support chain evidence that the you If believe from the find and working broke and caused was upon plaintiff which ing scaffold the in plaintiff fall and sustain to fall and caused scaffold to the said time, weakened was chain, prior to said at and juries, and that said likely break it to that was an extent rusting, to such by ... that and scaffold the said give way being support used to while and . reasonably safe, . . and not dangerous it was by reason thereof injuries to cause fall to to and likely said scaffold cause and was to find the find; you from if further and you if thereon, so persons ordinary care knew, by of exercise or the defendant that evidence danger chain and said of said known, condition of said have could defendant, by the exercise for the any, in time thereby, if injury of injuries said fall and said prevented have care, to ordinary of ours.) (Italics do so.” failed to negligently defendant that answer, up defenses by set defendant’s which also contained general denial, were an unavoidable accident and assumption of risk. Defendant contends that the court should have sustained its de- murrer to the evidence plaintiff’s because testimony own showed con- clusively that knew insufficiency he the of the of chain and assumed the risk breaking. of it Plaintiff ’s evidence was day that on the he injured (August 23, 1929) was working he was upon a scaffold- aon stage suspended by chains I attached to beams approaches one the A bridge. chain, the Eads on the end of stage plaintiff where working, was broke he ground. fell about to feet Plain- tiff testified that he painter and another- working commenced in the the,stage center of end; and worked toward the west that two other began painters stage at the other end of the and worked toward the center; three-eighths that the chain which broke was of an inch in eight diameter and long; to ten feet stage that the end of the to which it was higher end; attached five was raised about inches than the other men weight worked that direction it made more upon upon end; that chain than supporting those he other noticed (the high end) twenty this condition to an hour be- from minutes it; working fore chain that he had broke but continued toward scaffold; rigging that was nothing constructing or- to do with company; employees but place other place from to moved it was moved. usually place after help raise it into that he did his knowl- broke and chain which Concerning of the the condition as follows: testified edge it, plaintiff if you "Webber,I will ask Mr. you to, refer “Q. These chains by the in use they had been long how able to state know are you or knowledge. years, my A. Three Association? Railroad Terminal for used been had chain this you said Q. when Now, . . . used just like that chains you had seen you meant years, three Q. know that . You . . No; chain. same A. years? three you Q. know How do Yes, A. sir. years? three used for chain was Q. you saw And seasons. for three there worked I Because A. it? jusf( chain one' had -Terminal you think used, so same size jury one—tell particular this know you How do chains? or two ItA. size? same chains the other distinguished mark what precau- take you ever Now, Q. did . . lad. . rusted was it. Yes, sir; I measured A. it? size of exactly the discover tions About A. n Q.When? it? Q. Well, when working. While A. working you were a chain—where Q. measured You July, 1927. Q. Where? bridge. Merchants working We were A. then? *5 working bridge you were Q. same Is that Louis. A. In North St. A. away it? was Q." far How sir. No, A. got hurt? you when on or more. miles about two judge I should exactly; know I don’t (cid:127)Oh, Q. And Yes, sir.. A. month one years 'Q. before? two And yon measured a chain that being was then up used hold rigging to or the scaffold that job was on ? Yes, Q. A. sir. And reason you of that tell jury you this chain working were on on Eads bridge years two later away and two miles thing? was the same A. Q. Yes, sir. Did you put a mark No, Q. on that chain ? A. sir. What was the difference between any this chain you other chain worked ?with A. It Q. liad holes eat in it Oh, rust. it July, had that in Q. A. did it? Yes, sir. you And the reason measured the chain in July, 1927, you was really because thought the chain was proper not for the use being to which it put, was you? didn’t A. Well, I knew light the chain was too weight the amount there Q. was it. .. . Mr. Webber, you when did first observe this rusty? chain was A. It rusty July was I Q. when examined it. July, Was that in 1927? A. July, 1927, it had rust holes in it then. Q. Webber, you Mr. did know that this scaffold going was fall? to Q. A. No, sir. . . . Now, you particular noticed piece this one chain, you say, years? seasons; Q. yes, for two A. Three sir. You helped, had in the years, course of those three to it take down and Yes, put Q. up it times, you? number of you didn’t A. sir. And getting kept it Yes; rustier all time? A. and rustier be- noticed exposed Q. cause it was understand; to the weather. I but whatever you it, say you getting cause of kept noticed it rustier and rustier all Yes; the time? A. kept getting Q. it rustier. said in You it Q. forenoon rust Yes, way through? had holes it? A. All sir. A. I they Q. way through. don’t know as were all the But they were very Q. deep in? A. Pretty deep. they you And led to believe the No, exactly. Q. chain sir; wasn’t safe? A. Why you did tell us before noon it and now Explain did tell us it didn’t? jury. Q. Well, A. I didn’t chain know the would break. You jury you told noon this before believed the cham was unsafe. Now, you change going testimony? Yes; A. are I said that. Q. Q. you A. A. Yes, you Did mean it? Then still it? sir. mean Q. I along you chain, still mem it. So worked with' this old that as you longer they A. know much had it there? I don’t how had don’t. Q. you along chain, you kept thinking worked with this old As sir; Q. No, A. I didn’t think it was unsafe. You chain was unsafe? Q. . safe, A. . perfectly you? sir. . believed it was didn’t Yes. absolutely I jury why you changed. A. am sure that this But tell the Q. just Well, you you unsafe. were as sure then as are chain was know; I you? Well, A. am more sure be- now, weren’t I don’t now Q. you thought fell, unsafe, I before that it broke. But was cause thought it, you A. I but you weren’t sure about unsafe? n thoughtso.” ours.) (Italics determining under the Federal Act in this is a case Since assumption of risk we must follow of the doctrine.of application
17
decisions of the Federal
[Pryor Williams,
43,
courts.
254 U.
41
v.
S.
Sup.
36,
Ct.
65
120,
Ed.
reversing
Pryor,
L.
Williams v.
272 Mo.
613, 200 S.
53;W.
Toledo,
Allen,
St.
Western
Louis &
Co. v.
Railroad
244 320, U. Sup. S. 37 61 629, 1166; Ct. L. Ed. Pa. Boldt v. Railroad 245 Co., 441, 385; U. S. 38 62 Sup. 139, Pryor Williams, Ct. L. Ed. v. 254 43, Sup. 36, 120; U. S. 41 Ct. L. 65 Ed. Southern Pacific Co. v. 254 Berkshire, 162, 335; U. S. Sup. Toledo, Ct. L. Ed. St. *7 Louis & 276 Allen, 165, Western Railroad Co. U. S. 48 Ct. Sup. v. 215, 72 513; D., 7, L. Ed. L. & 279 Koske, W. Railroad Co. v. U. S. 49 Sup. 202, 578; Kuhn, Ct. 73 Chesapeake Ry. L. Ed. & Ohio v.Co. ] 284 52 44, Sup. 45, U. S. 76 Ct. L. Ed. 157. ordinary arising
The risk in this case was an risk not out of the plaintiff’s employment extraordinary hut must be classified as an risk arising negligence. employer’s principles upon out of his which assumption risks, Act, Federal the of such under the must be de- 689, They common law. C. termined are those of the sec. J. [36 892.] Court, Supreme are stated States as folloivs: the United “According is, decisions, that it is the to our the rule not s.ettled extraordinary duty employee care to discover of an to exercise dangers negligence employer of may that of the or arise from the responsible, the employer those for the is that whose conduct but may agents have exercised employee employer assume that the ‘or his contrary, proper safety until respect care with to his notified to the danger arising from it are so obvious unless the want of care and the circumstances,- would ordinarily the person, that an careful under appreciate [Chesapeake Ohio Railroad Co. v. observe and them.” & Atley, supra.] De assuming risk the employee ... is not to be treated
“The negli employer’s to arising that attributable the from a defect is defect, unless such or gence, employee aware of until the becomes known may presumed to have plainly that he be it is so observable assumption with charge employee the Moreover, an of it. order to negligence, it employer’s due to the of a risk attributable to a defect known) (or have only presumed is appear that he knew must endangered safety; else such or defect, that he knew it of the but person ordinarily prudent an danger have been so obvious must Valley, G. appreciated it. have [Gila under the would circumstances Hall, supra.] N.& Railroad Co. v. defect, “When employee* the does know of appreciates and it,
risk that is attributable if then employment, he continues in the without objection, obtaining or without from employer or his representative remedied, an assurance that the defect will be the em- ployee risk, though assumes the even it arise out of the master’s breach duty.” Horton, Air Line Co. v. supra.] [Seaboard
“Where the elements and combination out of danger which the danger arises always are visible it cannot be said that the itself is so apparent employee- held, law, be must as matter of to under- stand, appreciate, and assume risk of it. . . . The visible .05
r*H may conditions Rave been recent origin, and danger arising from them may have been obscure. cases, In such and perhaps others that could stated, question be of the assumption of the risk is plainly jury. for the But where the conditions are constant and of long standing, danger and the is suggested one by the common knowledge all possess,- which and both the conditions and dangers are obvious to the common understanding, and employee is of age, full intelligence, adequate experience, and all these elements the problém appear without contradiction, plaintiff’s evidence, question own becomes one law for the decision of the court.” 211 Frazee, 136, v. U. S. Sup. [Butler Ct. L. Ed. 281.]
In very two recent Supreme decisions the Court, United States though even there was no knowledge evidence of actual of the defec- tive condition place of the upon work part injured of the em- ployee, nevertheless, employee held such must have known the condition and must have danger therefore, understood the aas *8 matter law, risk, of assumed the because both the defects and the dangers long standing. Delaware, therefrom were In obvious and of Koske, 202, N. & 279 S. 497, Sup. W. Railroad Co. v. U. Ct. 73 L. 578, injured by plaintiff, switchman, stepping Ed. a into an was jumping engine. said: open while off of an The court drain origin place nothing of recent about the “There obscure or was long and of injured. conditions were constant The where he was long finding had known a requires that he standing. evidence The question. place in at the and condition drain its of the location the vicinity the of engines in the jumping from attending dangers The be held must Plaintiff dark, were obvious. in the drain, especially risk.” the appreciated and fully understood have to was Ct. Sup. 54 Bobo, Ry. Co. v. Pacific In Northwestern be- tender, fell bridge husband, a deceased plaintiff’s that contended having proper bridge, to not due condition unsafe anof. cause it was bridge, which of the top leading to steps on rails guard steps permitting in also work, and in his to use necessary for him to col- allowed water sloped, they that so and uneven worn become to that decedent shown was It slippery. became and depressions, lect during stairway ascended never had and night at worked in- was “the evidence held Appeals Court The daytime. described, or defects of the knew decedent to show sufficient that he were such employed he was which under conditions States United reversing decision this In them.” known have must said: Court Supreme gone had deceased agree: cannot we conclusion this “With August to many times very stairs open these fromf down and up he could light which -of by lantern proper February. a had He easily alleged see the defects. He must have been aware that moisture frequently accumulated. during Also often early the summer and autumn there adequate sunlight before o’clock a. m. to dis close the real conditions. suggestion No any is made complaint the company concerning the stairs or platform. We think the record ’’ enough discloses to show that any the decedent alleged assumed risk. In this case question there is no plaintiff’s knowledge of a de fective condition. His knowledge, of all required of the essentials by his (hereinabove instruction quoted italicized) and to be found "to negligence constitute part on the of defendant, was at least as complete as knowledge defendant’s thereof possibly could have been. question It is said: “Ultimately the becomes comparative one of knowledge; if an employee good position employer as his for ascertaining understanding and situation, equally and well knows appreciates conditions, he complain cannot be allowed to injuries by working sustained therein.” R. L. 685, C. sec. [18 173; see, also, McFarland v. C. & (Ky.), Co. 197 S. W. O. 944.] Is that not the situation here? positive Plaintiff’s that, admissions are for more years, than two light he “knew the chain was toó for the ’’ weight amount of it, that, there was knowing in addition to light the chain was knew, during too he time, all that there were deep it; rust holes in kept getting that he noticed that it rustier and rustier. What more employer could his have known? Plaintiff suggests nothing requirements more in the he states in his' instruc knowledge finding tion as to what of defendant would be a basis for negligent. gave any Plaintiff never which of this information employer. course, Of plain he had to his have assumed the risk tiff appreciated must have both known the condition and danger. “When, however, peril patent is obvious or so as to be by senses, readily employee understood the reasonable use of *9 having age, intelligence, experience, in will not be view his he say it.” R. C. L. appreciate heard to he did realize or that not [18 694, see. 179.] plaintiff
It he did not know the chain would is true that said that had broken he was more sure that it un- break and that since it was nevertheless, saying but, after he he was before that did not safe than chain he know, reaffirmed his statement that before the broke he twice admitting chain thought unsafe. After that he knew the was it was (even if weight hold it had been a light the it had to sound too for deep in he it, it had rust holes that chain), he saw also that that getting weaker), (the worse weak chain getting this condition saw unsafe, appreciation the what more of' thought it was that he saying thought he part? Does that danger not be on could there danger? saying appreciated its If that he amount to unsafe it was anyone how difficult to understand so, it would be had not said he
21 positive chain, that a supporting worked, the where he was scaffold light required too the weight hold, it was and in addition to that deep discovered chain, appreciate rust holes in the would not the danger and think it A complicated was unsafe. chain a is not device. Anyone must know holes in chain that the links of a would tend to extent, particularly weaken it to some upon a man who relied it to work place suspended hold liis of in the air. injured day It is further the was there plaintiff contended that on about, namely, which he did know that
was an unusual condition not stage inches the chain was raised five end of the where! the broke weight higher by end, more than usual than the other reason which chain, toward that end. upon the was thrown the as men worked by the United States A was similar contention considered somewhat Berkshire, 254 U. S. v. Co. Court Southern Pacific Supreme killed, engineer 335, was 162, L. Ed. where an Sup. Ct. a striking against the arm of cab, his head out of his he leaned action that basis of-the track. The the side-of the was. mail crane at engineer, that held the negligently but the court located ivas crane although was contended location, risk, knowing its assumed said: danger. The court appreciate not that he did only danger element “The may appreciated he not have precise was the which point distance of the crane would reach. experienced But an railroad man supposed cannot be to have been ignorant a projection danger and, that such knowing threatened so much, he obviously assumed the risk taking would attend leaning chances well out the train.” (cid:127) being Plaintiff, here, said higher, that he noticed five one end inches Although chain he before the broke. was certain whether he saw minutes, twenty nevertheless, only it an before or he had hour about suggested have it should be remedied. ¥e do not ample time to cii- say assumption an risk under all that this alone would be of the noticing it, to work toward cumstances, but after he continued end, closer to that end more although he said that as the men worked upon We that the evidence weight thrown chain. not think was do a slight in elevation was to show that difference was sufficient pull injuries. usually helped plaintiff’s Plaintiff proximate cause of evening be- stage was moved and had place into when it .on from which he injured up point helped pull at fore he any particular effort there was ever fell. There is no evidence that absolutely or that difference stage level get the floor made to increase substantially height would two ends five inches of the arising unexpectedly a condition the chain. It was not the strain on *10 Doyle v. Louis St. emergency in as create a which would sudden (2d) 425, 31 S. W. Co., 326 Mo. Bridge Terminal Merchants’ been same had was the this occasion work 1010. The method of throughout used the whole season. plaintiff’s evidence, From it would seem that for all the men to be near end one would have more effect on the slightly higher chain than a elevation of one end over the any other. event, In required the situation a chain which with- would slight stand a mere strain, additional such as a in position difference cause, could if plaintiff, already knowing and chain was too light, thinking being unsafe, noticing all the weakened rusting, time further work, complaint continued to or without suggestion employer, obviously in a manner which would make already unsafe, known unsafe condition still more he un- must doubtedly risk, be held to have tkd under rule assumed upon we based Federal courts which are bound to follow this case the Federal Act. Ferguson judgment Sturgis, GO., is reversed. concur. foregoing opinion by Hyde, C., adopted
PER CURIAM:—The J., judges concur, All except Hays, opinion the court. as the absent. (2d) S. W. Rytersky O’Brine, Appellant. v. Oliver
Catherine —70 538. One, April 1934.
Division