Kelley v. Chicago & Alton Railway Co.

79 S.W. 973, 105 Mo. App. 365, 1904 Mo. App. LEXIS 587

• Court: Missouri Court of Appeals
• Decided: March 1, 1904
• Status: Published

Opinion

GOODE, J.

(After stating the facts as above.) We have preferred to state this case largely in the language of the respondent in order to be sure to make a presentation that is fair to him, and will follow the same plan in further reference to the facts. Our copious transcriptions from his testimony show he attributes his fall and consequent injury to the torch-light failing for lack of oil, thereby causing him to stumble in the darkness over the seat-box, and to hi's footing being insecure because of the oil on the cab floor and on his shoes. It is plain that if the fall was not due to the respondent’s own inadvertence, those circumstances caused it; and it becomes important to ascertain whether either or both of them can be traced, in the light of the evidence, to some neglect of duty by the railway company that would be the proximate cause of the injury. The two causal events resolve into one, namely: leaking oil vessels; and the essential inquiry is, was the railway company to blame for the locomotive having such defective vessels on the trip in question! It was, of course, incumbent on the company to exercise ordinary care to furnish torches that would retain oil and burn the usual time, and to keep the cab floor in a safe state for use by employees. This proposition is a corollary of the general doctrine that employers must be careful to provide employees a safe place to work and safe tools to work with. Bnt an employer is not convicted of a breach of duty in this respect, by proof that an accident happens because of the defective tool or working place, except in instances when the occurrence itself speaks — that is when the accident carries proof of negligence on its face. Unless the negligence of a defendant is proclaimed as the proximate cause of a casualty by the very happening of it, proof that his negligence was the cause must be otherwise produced, to fasten responsibility on him; for a party who alleges negligence must establish it by one kind of proof or the other. Fuchs v. St. Louis, 167 Mo. 620; Erwin v. Railroad, 94 Mo. App. 289; Schuler v. Railroad, 87 Mo. App. 618. An accident betokens negligence on the part of some person when it is of a kind that experience shows would not otherwise have happened. The facts of the present case do not call that rule of evidence into play, as men often stumble and fall without anyone’s fault. The leaking vessels suggest negligence; but they do not demonstrate it; and if they did, the suggested negligence may or may not have lead to the respondent’s fall. Besides, there comes up the question of whose negligence was responsible for the leaky state of the vessels, if it was due to negligence; a question we will take up later. Whether the railway company was to blame for their condition, depends on the degree of diligence it had used to keep the engine supplied with vessels in good order; and whether it was shown to be to blame so as to make it liable in this case for the respondent’s injury, depends on the effect of the evidence as showing that it exercised or omitted reasonable efforts to supply good vessels. Reasonable efforts in this behalf would include inspection of the oil vessels at proper intervals, keeping the requisite quantity of those articles on hand, so that a defective one could be replaced, actual replacement as soon as its- defective condition was known or ought to have been known, and perhaps other precautions. An essential element of negligence on the part of the appellant was knowledge that the oil tanks were out of order, or such an opportunity to know as is the legal equivalent of knowledge. Machinery and utensils will get out of repair from use; and now and then a mishap will occur from their being out of repair, before the fact is known or could be known by careful management. It is a just rule for the protection of employers that they are not responsible for a mishap thus caused. They must have known, .or have had the opportunity to know, of the defect and have had, too, a chance to mend it, for liability to attach. Pavey v. Railroad, 85 Mo. App. 218; 3 Woods, Railways, sec. 373.

In Jones v. Yeager, 2 Dillon, 68, a very able judge thus instructed a jury on this subject in a way that clearly explained the law:

“The plaintiff’s theory is, that the explosion was caused by the defective boilers. What is the duty towards employees of the owner of a steam engine and boilers in respect to their safe condition? This is an important question, and must be carefully answered. The employer does not, impliedly, engage to insure his servants that there shall be no accidents resulting from the use of such machinery. Steam, which is a. necessary, if at the same time dangerous, power, and the danger which attends the use of it, impose upon the owner of machinery propelled by it certain duties and obligations, and these are to use ordinary care and prudence (the degree of which must be proportioned to the danger) to have and to keep the boilers- and machinery in a safe and sound condition. If the employer knows that his boilers are defective, or if under all the circumstances, as a reasonable man he should have discovered though he did not, their defective condition, or if he negligently remained ignorant of their defective condition, if the defective condition thereof was the direct and proximate cause of an explosion which injured servants-who are blameless, and who did not contribute towards the production of the accident by their own fault or neglect, then the law is that the employer is liable to such servants in a civil action for damages thus occasioned.

“1’n the application of these principles to the evidence, you will first inquire whether the boilers in this case were unsafe and unfit for use; and if so, whether the defendant knew it, or as a reasonable man, having due regard for the safety of his employees, ought to have known it; for if he ought, his neglect in this respect would be equivalent, in imposing liability, to actual knowledge. ’ ’

Such defects as escape attention because there is not time for the master to discover them by ordinary care, the servant takes the risk of as incident to his employment.

Now to establish that the appellant was in fault, two facts ure relied on: that the vessels leaked, and that before starting on the run from Slater to Kansas City, the respondent asked the proper employee for others and none were furnished. The vessels leaked; but there is no testimony as to how long they had leaked, or that the officer or employee, whose duty it was to furnish others, knew, or ought in reason to have known, others were needed — in short, there is nothing to prove the company was remiss, except Kelly’s notification and request at Slater. The duty of inspecting oil appliances about the engine, filling and keeping them in good order, was on him, he said. His testimony on that subject is as follows:

“ Q. I will stop there and ask you what are the duties of a fireman? A. Well the duties of a fireman are to get around on the engine, fill his own oil, and see . his lights are all filled and in good working condition, and get his fire ready and put out his signals and keep the engine hot until you get to its destination.”

Now that Kelly detected the leaky state of the vessels before starting, and probably no one else could have detected it .but the engineer, who was not charged with the duty of reporting, appears from the fact that Kelly filled the oil vessels, as was his duty. We quote again from his testimony:

“Q. How do you know that oil was there (on the floor) ? A. I could feel it, and I could see it when we first started out in filling the hand oilers; I have to fill them in the deck.

“Q. When did you first see any oil on the floor? A. The first time I discovered it, I knew the hand oilers were leaking, and filling them the oil ran out at the bottom while I filled them; I took a piece of waste and wiped it up.

“Q. "Wiped it off the floor? A. Yes, sir.”

The question of who was to blame for the engine having leaky oil vessels comes down then to the effect of what passed between Kelly and the supply agent at Slater. If Kelly gave notice of the defective appliances to which the accident was due, and requested good ones, he fully discharged his duty, and whatever blame attaches for the accident can not fall on him. On the contrary, if he did not give proper notice or make the proper request, so far as anybody is to blame for the consequences, he is; and Ms own fault is, of course, not available as a ground of recovery for his injury. Wien it is a servant’s office to keep tools in repair and he carelessly fails to do so, the rule that a master must use care to furnish a servant with reasonably safe tools has no bearing on the case; for the reason that the .servant’s own dereliction prevented the discharge of the master’s duty. Kleine v. Shoe Co., 91 Mo. App. 102; Allen v. Railroad, 37 S. W. 171; Carlson v. Railroad (Ore.), 28 Pac. 497. Now what notice did Kelly give the supply officer at Slater, and what request for perfect utensils did he prefer? Here is his testimony on that subject:

“They (the lanterns) were used as signals in case of wreck or any trouble.

“Q. And not for lighting the cab? A. No, sir; that’s the way I understand it.

“Q. The truth is a light interferes with the engineer and it’s not considered a good plan to have lights; it prevents him from seeing so well? A. I know the head brakeman rides in the engine, and you put it down so you can see to crack the coal; he may be there and may not; you are not supposed to have any lights, but you are supposed to have torches to go and clean the fire and oil the engine. ’ ’

Kelly testified that he asked for some lamps or signal lanterns before starting from Slater, bnt could not get any; or rather that he got only a flag and a broken lantern.

“Q. "What other lamps were there? A. Well, there was — I don’t know of any other; I went over to get some but they failed to give them to me on the ground they didn’t have any; I went for a lantern and they said they didn’t have any — to flag up in case of accident, they says: ‘We haven’t any; we have been out of supplies more or less for two weeks. . . . ”

“Q. Didn’t you know, in doing this work, that it was a rule of the company that if you discovered anything out of order that it was your duty to report"it? A. I done so, yes,.sir; I understood it and done so.

“Q. Where did you make the report? A. You are supposed to make the report, that is, if there is anything missing in the line of torches or lights, there’s a man in the yards, you report to him and he is to give it to you.

“Q. You did that at Slater? A. Yes, sir; and he failed to give them to me. He said they were out of supplies for some time; they were short.

‘ ‘.Q. And failing to get it you went out on the road . without it? A. He did give me a piece.

“Q. Well, answer my question? A. I didn’t fail to get everything; I got part of a lantern down stairs and part up and put it together.

“Q. And undertook to do your work with it? A. Yes, sir; my jurisdiction is to ask him.

“By the Court: What else did you demand of him but what you got, tell the jury? A. He didn’t give me time to demand, when I started to tell him he says: ‘I’m out.’

“Q. By the Court: Out of what? A. Supplies; he says we are out and have been out.

“Q. Then you didn’t call for any particular supplies? A. Jes, sir; I called for a lantern and flags, and he says';”*We are out of flags,’ and threw me a red rag, and I says, ‘Well, you had better look close, if anything happens they would hunt it up,’ and he found the bottom of a lantern down stairs and the top upstairs, and he didn’t give me any torches or anything else.

“Q. And you didn’t call for cmy torches, did youf A. Re told me he didn’t hatve cm%y more supplies.

“Q. You didn’t call for any? A. No, sir; when he told me he didn’t have any, its no use to call for them.

“Q. "What did you ask him for? A. I don’t remember ; I started to ask him for everything I needed and he said, he was out of supplies; supplies mean everything we need on the engine.

“So you didn’t really ask him for anything? A. Yes, sir; I asked him for a lantern and for a flag, he gave me a red rag.

“Q. Wasn’t it a fact the lantern and flag was all you went for? A. No, sir.

“Q. That is all you called for? A. There was no use to call for any more.

“Q. But that’s all you did call for? A. I would have called for more if he hadn’t stopped me.

“Q. You can answer this question; isn’t that all you called for? A. Yes; its all I called for.

“Q. You knew it was a rule of the company that before exposing yourself in working or being on the tracks or grounds of the company or working with or being in any manner -on or with its cars, engines, machinery or tools, you must examine for your own safety the condition of all machinery, tools, trucks, cars, engines or whatever you may undertake to work upon or with, before you make use of or expose yourself on or with the same, so as to ascertain as far as you reasonably can their condition and soundness, you understand that? A. Yes, sir; I understand everything is supposed to be in good shape before you go out.”

It thus appears that the respondent called for a lantern and a flag and nothing else. He made no request for a torch, no request for. hand oilers, or for a new steam gauge light. But the want of a good lantern and a flag had nothing to do with the accident; which, if due to defective appliances, at all, and in so far as it was due to them, is attributable primarily to the imperfect torch — the light that failed — and secondarily to those other imperfect vessels (hand oilers and steam gauge light) from which oil dripped'on the floor. But he complained of none of those articles, nor asked for others; and obviously he neither gave notice of the bad torches, nor of the other articles that were in bad order, and no servant of the railway company but himself is shown to have had any notice, actual or constructive, of their condition. If there was a neglect of duty by an employee of the company, it was by the respondent. He had more than five hours after he went to the engine and before the train left Slater, in which to repair appliances that were out of order or procure good ones, and it was his duty to make a reasonable exertion to do one thing or the other. He did neither, and the excuse he offers for his omission is that the supply agent told him when he asked for a lantern and a flag, that the supplies were out. This answer is assumed to have dispensed with the necessity of saying or doing anything further about the engine’s appliances; but the assumption is too broad. The response of the supply agent to Kelly’s request, as told by the latter in one part of his testimony, comes near to positively excluding the inference that any more was meant than that the supply of lanterns and flags, the articles requested, was exhausted; for he said, in answer to the request for lanterns and. a flag: “We haven’t any; we have been out of supplies more or less for two weeks.” And nowhere is the answer of the agent stated in a form that justified the respondent in taking for granted that there were no articles on hand to replace those defective ones which he did not ask for; in other words, that there were no supplies of any kind in reserve. Kelly certainly did not do his full duty by asking only for a lantern and a flag, when he knew, if he inspected as his duty required, that there were other tools in bad order and unsafe to use on the trip. The truth intrinsic in his narrative is that he was perfunctory, indifferent and willing to risk the appliances he had. So loose a performance of a most important task would inevitably lead to disaster in a business as hazardous as the operation of a railroad and can not be accepted as adequate. The chief managers of a railway company must trust to employees to notify them of faulty and defective machinery in their respective departments, and.Kelly was looked to for information as to the state of the particular appliances we are concerned with. It would be mere guesswork to say he would not have been given a new torch if he had asked for it. No doubt, if some one else had been hurt-in consequence of Kelly’s neglect, the railroad company would have been censurable. We hold that it is apparent from the respondent’s own version of the accident and the condition of the engine appliances which, according to him, led to it, that he was to blame, in so far as human agency entered into the affair as a proximate cause.

If he did not have safe implements to work with and a safe place to work in, it was his own fault, or nobody’s, so far as the testimony shows. If we accept the latter view, the case presented is a typical one for the defense of assumed risk. The doctrine of assumption of risk is of narrow range and application in our jurisprudence as it has been moulded in recent years by statutes and decisions. Public policy refuses to permit an employer to screen himself from the consequences of an injury his neglect inflicts on a servant, by saying the servant took the risk. Blanton v. Dold, 109 Mo. 64; Curtis v. McNair, 173 Mo. 270; 1 Labbatt, Master & Servant, sec. 2. But an employee does assume the risk naturally incident to his occupation, including the risk of injury from defective machinery, after the master had used ordinary care and reasonable diligence to furnish safe mahinery and to keep it safe, and, especially tbe risks incident to Ms own neglect; which, indeed everyone takes in every walk of life. Last citations above; Steinhauser v. Spraull, 127 Mo. 541; Fugler v. Botbe, 117 Mo. 475. As there is no evidence tending to prove any servant or agent of the railway company was guilty of a negligent act that was connected with the injury, unless the respondent was, it follows it was an incident of the respondent’s employment and was assumed by him, as the risk was obvious.

The instructions given in this case in behalf of the respondent declared it was the appellant’s absolute duty to furnish respondent safe appliances and a safe place to work, instead of declaring it was bound to exercise ordinary care to do so; but we have no occasion to take the instructions up and discuss them, as we hold there was no case for the jury.

The judgnlent is reversed.

Bland, P. J., and Reybum, J., concur.