272 Mo. 613 | Mo. | 1917
This case reaches this court by a proper certification of the Kansas City Court of Appeals, it being recited in the certificate of that court that one of the judges of that court deemed their opinion to be in conflict with the law as announced by this court in the case of Fish v. Railway Co., 263 Mo. 106. Judge Johnson of the Court of Appeals fairly outlines the case in this language:
“This is an action for damages for personal injuries plaintiff alleges he sustained in consequence of negligence of defendants, his employers who, at the time, were receivers of the Wabash Railroad Company.
“Plaintiff, a laborer, was employed in the work of tearing down a bridge on- the road near Ottumwa, Iowa, and was attempting to draw a bolt from a bridge cap with a clawbar when the claws slipped from their hold on the bolt, causing plaintiff, who was bearing down on the free end, to lose his balance and fall to the ground,
“The defenses interposed by the answer are a general denial and pleas of assumed risk and contributory negligence. The jury returned a verdict for plaintiff for $5,000, and after their motions for a new trial and in arrest were overruled, defendants appealed.
“The pertinent facts disclosed by the evidence of plaintiff may be stated as follows:
“Plaintiff, who was twenty-one years old and had been reared on a farm, entered the service of defendants as a common laborer in August,-1915, and worked for them until his injury in November of that year, his work being that of ‘helping build' steel bridges and taking down old ones.’ Shortly before his injury the foreman in charge of the work of tearing down an old bridge, ordered plaintiff to draw a certain drift bolt which was about fifteen inches long and three-fourths of an inch in diameter, from the bridge cap, a timber sixteen feet long and twelve by twelve inches in its other dimensions. First, plaintiff cut out the wood from around the bolt
“Further plaintiff states that to discover the defect required the inspection of the underside of the tool, and that in obeying the order of the foreman to draw the bolt he did not pause to make such inspection, but proceeded to use the tool without any but a casual inspection of its top surface, which did not reveal the presence
' The Court of Appeals held that the plaintiff assumed the risk of using a simple tool, where the condition thereof was open and obvious. If further details of the evidence become necessary they can best be given in the course of the opinion.
I. The assignment of errors in this court are: (1) refusal of a demurrer to the testimony at the close of plaintiff’s ease, (2) refusal of such demurrer at the close-of the whole case, (3) refusal to give instruction numbered 3 as asked by defendant and in modifying same and giving it as modified, (4) refusal to give Instruction Number 7 for defendant, and (5) refusal to give Instruction Number 12 for defendant.
We start with the rule, that where one employs another to do a given work (thus creating the relationship of master and servaint) the latter (the servant) assumes the ordinary and usual risks incident to such employment. We then advance to another simple and well defined rule, that it is the duty of the employer to furnish to the employee a reasonably safe place within which to perform the work, and reasonably safe tools with' which to perform it. These duties are what we denominate non-delegable duties. They rest upon the master, and if he leaves those duties to be performed by another, he is responsible for the performance. In other words, the master can never shift liability by saying that he had a competent person do these things for him. They are non-delegable duties in the sense that the master is always' responsible for the • faithful performance of them.
In the instant case the master furnished to the plaintiff a clawbar which, according to the evidence of the plaintiff, was not reasonably safe for the performance of the work assigned by the master to the servant. At least the jury could have found from the evidence that the tool as furnished was not reasonably safe for the performance of the work. .The question1 then of the master’s negligence was one for the jury, and the jury has found that the master was negligent. 'The simple-tool doctrine urged by the defendant we discuss later. What we now want to make clear is the fact that there is evidence in this record from which a jury might well find that the master was negligent in furnishing the clawbar used by the plaintiff, unless the
It is the unbroken rule in (Missouri, that the servant never assumes the risk, where such risk grows out of the negligence of the master. [Fish v. Railway, 263 Mo. l. c. 125. Charlton v. Railroad, 200 Mo. l. c. 433; Patrum v. Railroad, 259 Mo. l. c. 124; George v. Railroad, 225 Mo. l. c. 407.] These cases and the causes cited therein thoroughly state the rule and reasons therefor. Thus in the Charlton case, it is said: “Assumption of risks rests on contract — negligence rests in tort. [Dale v. Hill-O’Meara Construction Co., 108 Mo. App. l. c. 97.] The servant, when he enters his master’s employ, impliedly agrees with him, for the compensation named, to assume the risk of usual dangers incident to the work. But the servant does not assume the risk of the master’s negligence, for a very good reason, and that is'because' it is a fundamental proposition that it is against public policy for a master to contract against his own negligence. So, too, in the assumption of risks by a servant it is well to consider a certain assumption by the master, and that is, that the master impliedly contracts with the servant that he will exercise ordinary care to protect such servant from injury by providing a reasonably safe place for him to work.. When these two assumptions are considered as proceeding hand in hand, it will be perceived that the risks assumed by the servant are those risks alone which remain after the master has exercised ordinary care.”
To like effect Faris, J., in Patrum v. Railroad, supra, said: “The moment negligence comes in at the door it may well be said that the doctrine of assumption of risk goes out at the window. [Curtis v. McNair, 173
Now in the instant case, if the furnishing of the worn and battered elawbar, was negligence upon the part of the master, then under the Missouri rule, so long and so firmly fixed, there is no assumption of risk in the use of such tool. If the tool was so patently defective that an ordinarily careful and prudent man would not have used it, then we have the plaintiff doing what an ordinarily careful and prudent man would not have done, having in view his own self-protection, and such use would be negligence upon his part, which negligence contributed to his injury. In other words, we would have negligence upon the part of defendant, and contributory negligence upon the part of the plaintiff. But under the Federal law, this contributory negligence does not bar a recovery, but may be only shown to reduce the damages. If therefore, the furnishing of this elawbar, in its defective condition, was negligence upon the part of the master, there is no assumption of risk in the case, and the most there is for the defendant is the alleged contributory negligence, and the demurrers to the evidence could not be sustained on that ground, under the Federal law.
Whatever the rule as to assumption of risk may be in other -jurisdictions, we are satisfied with the Missouri rule. We are as yet not convinced that 'we were wrong in the Fish case when we said that in the class of eases under the Federal statute, wherein assumption of risk could be invoked as a defense, such assumption of risk was that of the common law as interpreted by this court, in cases tried in our court. .As this court interprets the common law, there can be no assumption of a risk occasioned' by the negligence of the master. We find no Federal case discussing the right of this court to apply its common law rule in determining whether or not the defense of assumed risk is in a case. Until the higher court says we cannot apply the common law rule as we understand it to be, and for years have understood it to he, we shall adhere to the rule as announced in the Fish and previous cases, i. e. that the servant never assumes a risk which is the outgrowth of the master’s negligence, and further that if such servant remain in a glaringly unsafe place, or use a glaringly
What we have previously said practically disposes of this question. . It is negligence for a master to furnish a tool which is not reasonably safe to be used on the work, and we care not what the character of the tool, in so far as the negligence of the master is concerned. Because the contract of hiring called for a reasonably safe place wherein to work, and reasonably safe tools with which to work. When we say the contract of hiring, we mean such a contract of hiring as we have ioefore us in the present case. If the master 'says, to the servant, I have a certain work to do, and here are the tools you must use, and the servant accepts the employment, we might have a different case, but that is.not this ease, nor do we say we would have a different case, because the contracting against his own negligence might be a factor. However, we had better adhere to the case here.
Going back to the so called simple-tool doctrine, what is there to be found in it? In its last analysis it is nothing more than that of contributory negligence. A servant picks up a hoe, an axe, or a clawbar, and if the defects are open and glaring, and so open and glaring that a reasonably prudent person would not undertake to use them in the work being done, then the use of the tool would not be the exercise of ordinary care upon his part for his oVn protection. This failure to use ordinary
choosing . Method?US VI. What we have said practically disposes of another contention made, i. e., that the servant having chosen the more dangerous of two methods of doing work, assumed the risk incident to the method chosen. Here again the courts of this State denominate this act contributory negligence and not assumption of risk. [Montgomery v. Railroad, 109 Mo. App. l. c. 94; Moore v. Railway, 146 Mo. l. c. 582.] .
In the Moore case, supra, Williams, J., quotes with approval the following from Bailey on Personal Injuries Relating to Master and Servant, volume 1, section 1123: “Where a person having a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.”
And this is sound, in my judgment. If a servant choose the more dangerous of two ways open to him, he is failing to do (for his own protection) that which an ordinarily careful and prudent person would do.' Such failure is negligence on his part, and where such negligence is invoked as a defense by the defendant in a law suit, the law denominates it contributory negligence.
VII. As indicated, the rule announced in the Court of Appeals contravenes the rule in the Fish and other