Lowe v. St. Louis & San Francisco Railroad , 165 Mo. App. 523 ( 1912 )

COX, J.

Action for personal injury caused by plaintiff falling while working as a section hand on defendant’s track. Judgment for plaintiff for $1000. Motion for new trial sustained upon the ground that the court erred in not sustaining a demurrer to the testimony, and from the order sustaining the motion for new trial plaintiff has appealed.

The injury came about as follows: Plaintiff was engaged in taking old ties out from under the rails on defendant’s track. In doing this the usual course and the one pursued by plaintiff was to take away the ballast from the sides of the. ties, then jack up the rails sufficiently to permit the tie to be slipped out, then imbed one end of the pick in the tie by a blow with the pick and by pulling on the handle of the pick, pull the tie out from under the rails. On the occasion of this injury, plaintiff attempted to strike his pick into the tie but the pick was so dull it did not take hold at the first blow. He repeated the blow and it again failed to catch but on striking the third blow, it seemed to have a firm hold and he began pulling on it “very gradually” when it slipped out and he fell backward and received the injury of which he complains. The negligence of defendant relied upon for the recovery is its failure to have plaintiff’s pick sharpened. The •contention of plaintiff being that if the pick had been properly sharpened it would not have slipped out and plaintiff would not have fallen.

Plaintiff testified that he had used the pick nearly two months and at the time of the injury, the pick had not been sharpened for a week and a half and was very dull. He had said to the boss: “How much longer will we have to work with these dull picks” and the boss said: “They are in bad shape and as soon as I get time I will have them sharpened.” Continuing plaintiff testified: “This day, when in that -condition, it was difficult for a man to work with pick in that shape because of it being dull it was hard to stick in the ties. You could hardly get a dull pick in the ties to stick. The boss had promised to have the picks' sharpened the next morning.” Q. “Why did yon go ahead with the tool in that shape?” A. Because of the promise that he would have it fixed the next morning.’’ Further: “I stuck my pick in the tie and as I went to make my pull I saw the pick was not properly imbedded in the tie and I taken it out and stuck it in the tie and saw it wouldn’t hold again, and the third time I stuck the pick in the tie it seemed to be solid and I started to pull at it very gradually and my pick came out and I fell. ... I worked practically all the time with a dull pick. It was getting a little duller all the time. It was good and dull practically all the time except the two or three days after sharpening. They would begin to get dull in two or three days. . . . My pick had slipped out various times but not so as to throw me. I can’t say whether it had that day or not as I paid no attention to that and don’t know as I would to this if I hadn’t got the. fall. It had slipped-before this but not in the way it did this day. That was the first time I got a fall. It had slipped before but I say at different times. I never said many. I could not tell how many. Yes, when the pick got dull, it would slip out because you could not imbed it in the tie. I knew the pick was dull and knew it had not been sharpened. I won’t say that I knew it was likely to slip because I never had been hurt before. I did not know it was going to slip with me. I never gave it any thought that morning. I never .thought about getting hurt. I can’t say I thought about the pick slipping out. I can’t say it entered my mind for I don’t know.”

Golden Hankins, a witness for plaintiff testified: “We do not quit when the pick gets dull. We keep on working. We don’t get so much done with a dull pick but I don’t know as a fellow is much tireder. It is very difficult to get done what we do. Anybody ought to know when a pick is dull. If you don’t stick a sharp pick in, they pull out. Sometimes they will slip out of a creosote tie, not often though., not as often as a dnll one. You can hardly put a dull one in one. A sharp one won’t pull out if you catch them right.”

W. H. Haney, a witness for defendant, testified:

Q. “When you say it is customary to take out ties with a dull pick, you don’t mean to say that it is a custom generally?” A. “No,' not generally. It is customary that the picks will get dull. They would get dull down there, so much so that I would take the picks home occasionally and sharpen them.” Q. “If it was the custom to take ties out with dull picks, why did you do that?” A. “It made it much easier work and didn’t cost nothing to keep it sharp.” Q. “And made it some safer to work with?” A. “Some safer, yes, sir.”

The foregoing covers every material fact in this case. Was it sufficient to send the case to the jury? There are no difficult legal questions involved in this case. The master is required to use ordinary care to furnish his servants with reasonably safe tools and appliances and must use the same care to keep them in reasonably safe condition and the servant must use ordinary care for his own safety. The master is not required to furnish tools or appliances that are absolutely safe but only such as are reasonably safe for the purpose for which they are to be used, and what is ordinary care in a particular case depends upon the nature and character of the tools or appliances and the dangers to be encountered in their use. [Franklin v. M., K. & T. R. R., 97 Mo. App. 473.] The burden of proving negligence on the part of the master always rests upon the plaintiff and his case is not always made by showing the condition of the tool or appliances and the resultant injury. To make a case, the plaintiff must present to the jury a state of facts that will show that at the time of the injury an ordinarily prudent man in the place of the master would have apprehended that the use of the tools or applianees furnished would, by reason of their condition, probably result in injury to the servants.

To our mind, the testimony in this case solves every question in it against appellant’s contention here. There is an entire absence of any testimony tending to show any duty resting upon defendant to keep plaintiff’s pick sharpened in order to prevent his being hurt by using it as it was being used at the time of the injury. The only testimony that could by any possible construction lend any support to appellant’s contention is the testimony of witness Haney to the effect that a sharp pick would be a little safer than a dull one. This was, at best, only stating a conclusion, but if we give it its full force, it is still not sufficient, for the fact that a sharp pick may be a little safer than a dull one does not prove that a dull one is not reasonably safe. A pick is a very simple tool with which every one is familiar and whether dull or sharp would not ordinarily cause apprehension of danger in its use, but be that as it may, plaintiff knew all about the pick he was using; knew its condition; knew a dull pick would not stick in a tie like a sharp, one; knew it had been slipping out because it was dull, hence, must have known that it was likely to slip out at any time and yet he did not apprehend any danger of getting hurt in case it did slip out for he says: “I never gave it any thought that morning. I never thought about getting hurt.” It had slipped out before and had not hurt him, so the thought of getting-hurt on that day in case it should slip out again did not enter his mind. If he did not apprehend danger of getting hurt in case of a slip after he had used the pick for nearly two months and had experienced slips before, the master should certainly not be held to have anticipated injury in case of a slip. This is not a case of a latent defect or a ease in which the master has superior knowledge of the condition of the appliances furnished but is a plain case of a man working with an ordinary tool and possessed of all the knowledge in relation to its safety that any one possesses and the fact that he apprehended no danger at the time is the strongest possible reason why no one else should be held responsible for not having apprehended danger and provided against it. The fact that the pick had slipped out several times before and the plaintiff had not fallen coincides with the common knowledge of every one that a pick slipping out as this one did is not likely to cause a man using it to fall and such a result would not be anticipated by any reasonably prudent man and, therefore, there is no basis for a charge of negligence on the part of the servants of defendant in not sharpening the pick.’ There being no reason to apprehend danger of injury to plaintiff by his use of it while dull, there could be no duty to keep it sharp for his protection. The sharpening of the picks was not done to protect the men using them from injury but was done to facilitate the work in which they were engaged.

If, however, we assume that defendant should have apprehended danger of plaintiff falling in case the pick should slip, plaintiff’s case is not helped to any extent, for he would also be chargeable with the same apprehension and it would then have been his duty to have used ordinary care to have prevented it, and the fall could have been prevented by a very slight precaution. If he were to fall at all, he would of course, fall backward and had he taken the simple precaution to have placed one foot back and thus braced himself against the apprehended fall, it would have been prevented. It is the duty of every one to use ordinary care for Ms own safety and if there was any reason to apprehend a fall, then such apprehension would also have suggested guarding against it, and since tMs could have been so easily done plaintiff would have been guilty of contributory negligence in failing to take so simple a precaution.

Our conclusion is that the trial court was right in sustaining the motion for a new trial for the reason stated and the judgment will, therefore he affirmed. All concur.

The motion for rehearing is overruled by Cox and Gray, JJ. But Nixon, P. J., was for granting the motion and files a dissenting opinion. For the reason set out in the dissenting opinion it is ordered that the case be certified to the Supreme Court.