Kane v. St. Louis, Kansas City & Colorado Railroad , 112 Mo. App. 650 ( 1905 )

ELLISON, J.

This is an action by plaintiff who is the widow of Frederick Kane who was killed by falling from the side of an embankment while (as plaintiff charges) he was in the employ of defendant as a laborer. The judgment in the trial court was for the plaintiff.

It appears that in constructing its road through Osage county it became necessary to make a deep cut through the earth and rock so as to put the track upon a proper grade. The cut was thirty-five or forty feet deep and the embankment made thereby was, at most places, nearly perpendicular; but at the place from which deceased fell, there was a sort of bench about eight feet below the top and about thirty feet above the bottom of the cut which afforded room for one to stand. Between the bench and the top of the cut a rock protruded out of the side of the cut or embankment and defendant’s foreman ordered deceased to go up onto' the bench and prize it out. Deceased procured an iron bar or “spud” and went to the place. Instead of prizing under the rock he struck at it overhand, and either missed it or struck it a glancing lick on the top. The misdirected effort thus made caused him to lose his balance and fall to the bottom of the cut, his death being the result.

It appears clear that defendant is not liable. The work which deceased was performing was manifestly done at his risk — a risk he assumed in his engaging in the work. The evidence in no way shows any hidden danger of defect in deceased’s surroundings. He could plainly see all that was involved in his effort to loosen the rock. He had a bench, made by the shape of the embankment at that point, upon which to stand, and he knew, as anyone must have known, that a misdirected blow would, in all probability, throw him from his position. It is however said by plaintiff that from his place when directed to go and do the Avork, he could not see and judge of the danger. That may be true, but certainly he could see and know all about it when he got to the place. The fact is, deceased met his death, as appears by the testimony of the only eyewitness, by making a -misstroké at the rock instead of prizing under it, as directed. We do not regard the case of Stephens v. Railroad, 96 Mo. 207. That case shows a sudden emergency presented to the injured servant in which he could not have had much time for any other thought than that of doing what he was told. From the position of the deceased in that case, and in the circumstances in which he was placed, it was not apparent to him that the rapidly approaching train would strike him. So of Schroeder v. Railroad, 108 Mo. 322, and other cases cited by plaintiff. They do not apply to the facts of this case. In the case last cited, it is said that the servant assumes all the ordinary risks of his employment. That statement is the one commonly used by judges and text-Avriters. But it. is readily seen that the amount of the risk assumed depends altogether on the nature of the employment. The risk in some employments is so great as to appall the ordinary man, while the risk in other employments is commonplace. A painter accepts employment to paint a flagstaff hundreds of feet from the ground — the slightest misbalance means death. So carpenters and others work on the sides of high buildings on swinging scaffolds — the mere act of overreaching for an object will precipitate tsuch person to the ground below. These are great risks that these men assume. If through the fault of the master the scaffold breaks a liability attaches for the consequences to the servant. But if the mere manner of doing the work thus undertaken causes the injury, negligence, or an assumption of the risk agreed to by accepting such employment, is the only answer the law makes to a complaint therefor.

In this case the place where deceased was pnt to work was as safe as the nature of the employment he undertook permitted. The bench or ground upon which he was standing held its own. There was no hidden peril. His place was not as dangerous as those in the illustrations just stated. If a carpenter on the edge of the roof of a building becomes dizzy, or by misstfoke of his hammer he -loses his’balance and falls, is the master to respond in damages for putting him in such unsafe place in housebuilding? The place is no more dangerous or unsafe than the nature of the work to be done makes necessary, and therefore no liability can follow. [Burnes v. Railroad, 129 Mo. 41; Harff v. Green, 168 Mo. 308; Gibson v. Freygang (decided this term.)]

In Bullivant v. Spokane, 14 Wash. 577, a laborer was engaged at work on a dam which was built at such an angle to the water of Spokane river that he slipped off and fell into the water and was drowned. The court held that the conditions and surroundings were apparent to Bullivant. That he knew no means were provided to prevent him from falling into the water. That he “could see and appreciate the peril to which he was exposed by his employmentand that “it must be con-eluded, as a matter of law, that he accepted such peril as incident to his employment.” In Fisher v. Railroad, 77 Mich. 546, the deceased with a pike pole was endeavoring to keep a scow from striking a pile driver, the pole slipped as he was pressing it against an object and he lost his balance and fell into the water. It was complained that no provision was made to prevent the workmen from falling into the water, or to rescue them after they should fall in. But the court held that all this was apparent to the deceased. That there were no hidden perils and that he assumed the risk.

And so we hold that no case was made against defendant and hence reverse the judgment.

All concur.