Boyet v. Davis

*519 BRADLEY, J. Plaintiff sued- to recover for a rupture alleged to have been received while working as a section hand on the Frisco railroad on April 26, 1939. The cause was filed in Wayne county, but the venue was changed to Butler county where a trial was had to a jury on January 11, 1924. Plaintiff obtained a judgment for $2000, and defendant appealed. *520 The charges of negligence relied upon are (1) the failure to furnish a sufficient number of able-bodied, competent and willing men to do with reasonable safety the work in which plaintiff was engaged at the time of his alleged injury, to-wit, the removing, from the railroad track a motor car used by the section crew; (2) the alleged negligence of defendant through the section foreman in directing the motor car to be removed under the circumstances; and (3) the alleged negligence of plaintiff’s fellow servants in failing, to use reasonable care to assist plaintiff in removing the motor car. The answer is a general denial, and a plea of assumption of risk. Also defendant alleged in its answer that the work in which plaintiff was engaged when injured was in furtherance of interstate commerce. The reply denied generally the new matter, but admitted that the work was in furtherance of interstate commerce, and the cause was tried as one under the Federal Employers’ Liability Act. [U. S. Comp. Stat., sec. 8657 et seq.] Defendant assigns error on the refusal of the demurrer, and on the instructions. At the time of the alleged injury plaintiff resided in Williamsville, Mo., and was a member of the section crew. The crew consisted of plaintiff, then about sixty-four years of age, Everett Secrest, Arthur Fudge, and the foreman Bill Jones. Fudge had been on sick leave for about a month, and returned back to work the day of plaintiff’s alleged injury, but was still afficted with a boil under his arm. Secrest, according to plaintiff, was an individual who “had a habit of shirking his work in different ways. He would shirk on you if you were lifting a tie with him, for instance a good big tie; he would always make the other fellow do the heavy lifting.” On the morning of plaintiff’s alleged injury the crew had gone out on the motor car about four miles northeast of Williamsville to the place of work, when they stopped, the tools or a part of them were unloaded, and the motor car removed from the track by lifting up the *521 Fear end and carrying it around until the front trucks dropped off the rails. In removing the motor car on the day in question plaintiff said that “Secrest went to the left hand corner, I went to the right hand corner and Mr. Fudge to the middle, and we swung to the north side.” The foreman did not assist in removing the motor car from the tracks. The motor car weighed between 1500 and 1600 pounds and carried at the time 300 pounds of junk iron and tools and was about seven feet and six inches in length. At the place where the motor car was removed the spaces between the ties were filled with gravel up even with the ties, and the top of the rails was about four and a half inches above the top of the ties. Plaintiff claims that he was ruptured by the weight thrown upon him when the end of the motor car was swung around to the north causing the front trucks to drop from the rails. He described the manner of his injury thus: “When the wheels dropped down the car ruptured me. The car made a sudden jar, sudden jerk, a sudden weight on me. It was when the car dropped down from the rails on the ties- — that’s when it caused me to be ruptured. I didn’t notice what the other two men were doing at the time, but this sudden heavy weight gave me a sudden breakdown — a sudden giving away. I had hold of a little rod, a handle on the end of the car.” Defendant’s demurrer is founded upon the contention that plaintiff as a matter of law assumed the risk. Under the Federal Employer’s Liability Act an employee entering upon a contract of employment assumes all the risks and dangers ordinarily incident to the employment, and also risks caused by the employer’s negligence which are obvious and fully known to the employee and appreciated by him, or so plainly observable that he must be presumed to know them. But the employee is not, under the act, required to use even ordinary care in discovering dangerous defects, and knowledge will not *522 be imputed unless the defects are plainly observable. [Seaboard Air Line Ry. v. Horton, 233 U. S. loc. cit. 304, 58 L. Ed. 1062; McIntyre v. Railroad, 227 S. W. (Mo. Sup.) 1047, and eases there cited.] A writ of certiorari was denied in the McIntyre case by the Supreme Court of the United States. [See 255 U. S. 573, 65 L. Ed. 792.] Under the act the negligence of a co-employee, a fellow servant, as to the assumption of risk, is placed upon the same ground and is governed by the same rules as those that apply to the negligence of the employer. [Chicago, Rock Island & Pac. Ry. Co., et al. v. Ward, 252 U. S. 18, 64 L. Ed. 430.] Assuming that defendant and plaintiff’s co-employees were negligent, the question then is: Did plaintiff assume the risk? Plaintiff was the only witness. He had had thirty-five years experience in a section crew, and for eighteen years was a foreman of a crew. As to what he knew about the situation of which he complains, he testified as follows: Secrest worked for me while I was section foreman; I was familiar with him. At the time of this injury I had known him for a great many years, he had worked under me as section foreman. I laiew how he worked. Pie shirked on his job; I don’t know exactly how long he had been doing that, but he had, off and on, all the time I worked on the road there with Jones for four months. He shirked his job while he was under me as section foreman. I knew that this fellow was a shirker for several years, and I knew that fact when I undertook to lift this car off the rail, with him assisting me. I had lifted this car every day with him and Fudge for four months, except Sundays. We lifted all the way from two to four times a day. Yet, I say there should have been five or six men to lift this end of the car off the track. We had not been using but three men during the four months that I worked there; been doing that ever since I commenced work for the defendant, just using three, and I was one of the three. These two other fellows wasn’t working there all the *523 time. Seerest had been working there- about four months with me, and he had been helping- handle that end of the car, taking it off the track, I had lifted it off the track before with the same men hold of it, when it had the dinner buckets, flags, etc., on it; had done that a number of times before I got hurt. Fudge was working there when I went to work; he had been working longer than I had, and I knew what sort and character of man he was, with reference to doing his work, at the time I got injured. I also knew about the quality of Seerest’s work when I got hurt. I knew all the time, from the time I commenced work there until I got hurt, that there should have been five or six men to lift it, instead of three; I knew that when I first went to work there, and I continued to work for four months after that. I had no business to tell Jones that Seerest was a shirker; I didn’t tell him anything about Fudge not being able to do his work. Mr. Jones knew he wasn’t able to do his work, and I knew it too. ’ ’ Plaintiff concedes that he knew, when he entered upon this employment, of every danger of which he complains. He knew that there were not enough men in the crew to handle this motor car as it was required to be handled in carrying on the work required to be done. Pie knew that Seerest was a shirker, and when he started to lift the motor car from the rails when he was injured he knew that Fudge was incapacitated. According to plaintiff’s evidence every act of negligence of which he complains was fully known to him and was fully appreciated by him. Near the close of plaintiff’s evidence he says: “I said it would take five or six men to take this car off the track in safety. I always knew that. I knew it wasn’t safe for three men to lift it off, but I had to do it or get off the road. I knew that when I first commenced work there. I knew it was dangerous for just three men to handle the car; I knew that when 1 commenced working there four months before.” *524 Measured by tbe law of assumption or risk under tbe Federal Employers’ Liability Act reasonable men could not differ as to tbe knowledge by plaintiff of tbe acts of negligence of wbicb be complains, and bis full appreciation of them. We are constrained to bold that plaintiff as a matter or law assumed tbe risks of wbicb be complains. Having reached tbis conclusion it is not necessary to dispose of other assignments. Tbe judgment should be reversed and it is so ordered. Cox, P. J., concurs : Bailey, J., not sitting.