Post v. Chicago, Burlington & Quincy Railway Co.

97 S.W. 233, 121 Mo. App. 562, 1906 Mo. App. LEXIS 498

• Court: Missouri Court of Appeals
• Decided: November 5, 1906
• Status: Published

Opinion

JOHNSON, J.

Action to recover damages resulting from personal injuries alleged to have been caused by the negligence of defendant. A demurrer to the petition was sustained by the trial court on the ground that the facts stated constitute no cause of action and plaintiff appealed. The facts pleaded, in substance, are as follows: Plaintiff, a common laborer employed by defendant,, a railway company, while engaged in the task of cutting weeds on defendant’s right of way struck the stalk of a large weed with the cutting edge of the scythe he was wielding’. The blow failed to sever the stalk and its force was communicated to the weed causing the latter to sway towards plaintiff and strike him a violent blow in the face. The sight of his left eye was completely destroyed and that of his right eye permanently impaired. It is alleged that plaintiff was working under the direction of defendant’s foreman and the specific acts of negligence charged are the failure of defendant to employ reasonable care to furnish plaintiff a reasonably safe place in which to work and to provide him with a reasonably safe tool with which to work. The place where the act was performed was “on a slanting bank on said railroad and right of waythe weeds being-cut were “what is commonly known as gum weeds which had grown ... so large that one stroke of the scythe would not cut one of said weedsand the tool employed was an ordinary scythe which was free from defects either patent or latent. We gather from the averments of the petition that the pleader predicates the action on the theory that a common scythe was an unsuitable tool to use in the cutting of such weeds in the place described and therefore that defendant was negligent in providing plaintiff with that implement for that purpose.

The demurrer was properly sustained. The facts pleaded disclose that defendant was guilty of no negligence. Railroads run through cuts and over embankments and necessarily have slanting hanks along the right of way.- Weeds of various kinds grow on such places and must be cut. Defendant’s duty as a master did not require it to furnish plaintiff with a smooth and level right of way on which to cut weeds, nor to furnish him with any particular kind of implement. A master in the exercise of reasonable care is not compelled to provide the servant with the newest, safest and best appliances, but only with such as -are reasonably suited to the use the servant is required to make of them. [Mathis v. Stock Yards Co. 185 Mo. 434.]

A scythe is a simple tool used by mankind from remote ages to the present for the cutting of grass, grain and weeds and it would be absurd to- treat as an issue of fact the propriety of its use for such purposes on any kind of ground where the mower could stand. The uses of such simple, universal tools, being a matter of common knowledge about which reasonable minds do not differ, are a subject of Avhich courts may take judicial knoAvledge.

Plaintiff’s unfortunate, injury obviously was not caused by the insufficiency of the tool, but by his manner of delivering the stroke. The case is so plain that further discussion would be superfluous. The judgment is affirmed.

All concur.