Deckerd v. Wabash Railroad

BLAND, P. J. (after stating the facts). — 1. The accident was not novel in its character nor one that is altogether unusual; such misfortunes befell in the time of Moses, as we read in Holy Writ this wise and venerable lawgiver laid down a just rule of law in res — 123 — pect to them. He commanded the Israelites to divide their coasts in three parts and bnild cities of refuge in each of them to which the unmalicious slayer might flee and live. The unfortunate wielder of an axe was classed as one who might escape the avenger of blood. Moses said: “As when a man goeth into the woud with his neighbor to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbor; that he die; he shall flee unto one of those cities, and live.” [Dent, XIX: 5.] In harmony with this ancient law of Moses, the trial court gave the following instruction: “The court instructs the jury that the defendant was not an insurer of the plaintiff’s safety at the time and place here in question; and you are further instructed that you cannot infer or presume that the defendant was negligent at said time' and place, or find a verdict in the plaintiff’s favor from the mere fact, if it be a fact, that the spike maul described by the evidence slipped off of its handle and fell upon the plaintiff’s foot and injured it.” And the Supreme Court, in Bowen v. Railroad, 95 Mo. 268, said: “The mere fact that an appliance proves to he defective and the servant is injured, does not make out, as between master and servant, for the latter, a prima facie case of negligence on the part of the master;” approved in Fugler v. Bothe, 117 Mo. l. c. 491, 22 S. W. 1113. On the other hand, it is universal American law that the master, at his peril, must see that due care is exercised in the furnishing of machinery and tools to he used by his servants, having regard to their nature and the purpose for which they were to be used. [Dutzi v. Geisel, 23 Mo. App. 676; Comerford v. Coulter, 82 Mo. App. 362; Palmer v. Telephone Co., 91 Mo. App. 106 ; Thompson v. Railway, 86 Mo. App. l. c. 148; Minnier v. Railway, 167 Mo. 99, 66 S. W. 1072; Epperson v. Cable Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. 1050; Beasley — 124 — v. Transfer Co., 148 Mo. 413, 50 S. W. 87; Bender v. Railway, 137 Mo. 240, 37 S. W. 132; Rodney v. Railway, 127 Mo. 676, 28 S. W. 887, 30 S. W. 150.] It is likewise the master’s duty to nse ordinary care to inspect and keep .appliances and tools in a reasonably safe condition for the use of bis servants. [Coontz v. Railway, 121 Mo. 652, 26 S. W. 661; O’Neil v. Young, 58 Mo. App. l. c. 631, and cases cited; Rodney v. Railroad, Bowen v. Railroad, supra.] Applying these rules of law to the evidence, which, on the part of plaintiff shows that the handle, in the maul that slipped and fell upon him, was wedged by one small wire nail, the concurrent testimony of all the witnesses being that such wedge was insufficient and that wedging was necessary to keep a maul from slipping from the handle, and the conceded fact that all handles were wedged when put into the maul, we think the plaintiff was entitled to go to the jury on the specific allegations of his petition of negligence on the part of the defendant, that it put the handle in the maul so that it was loose and was negligent in permitting the maul to become loose on the handle and to> be used in this condition, and hence the instructions in the nature of a demurrer to' the evidence were properly overruled. 2. Defendant complains of the following instruction which the court gave for the plaintiff: “The jury is instructed that it was the duty of defendant to furnish its section men with spike mauls which were reasonably safe and secure for said section men to work with in the performance of the work which was assigned by defendant to' its section men to be done by them. “If therefore, the jury find and believe from the evidence in the case that the plaintiff, on or about the twenty-first day of September, 1903, with one Nedeschulte, was employed by defendant as section men, and, as such, were engaged in spiking railroad rails to the ties on defendant’s track; and if you further believe — 125 — that for said work the defendant negligently furnished said Nedeschulte an iron spike maul on a wooden handle with which to do said work; and if you further find from the evidence that by reason of the negligence of the defendant said spike maul was furnished to said Nedeschulte in a condition that was not reasonably safé for use in driving spikes, by reason of said spike maul not being sufficiently wedged and fastened on the handle; and if you further believe that while said Nedeschulte was using said spike maul in driving a spike, it, the said spike maul, by reason of not being sufficiently wedged and fastened on the handle to render it reasonably safe for use in driving spikes became loose on the handle and flew off the handle and struck and injured plaintiff, without any fault or negligence on the part of the plaintiff, and while the plaintiff was in the exercise of ordinary care; and if you further find from the evidence that the defendant knew, or by the exercise of ordinary care, might have known of the unsafe condition of said spike maul, if you find from the evidence that said spike maul was unsafe in time to have, by the use of ordinary care on the part of defendant, avoided injuring plaintiff, then your verdict should be for the plaintiff.” The following clause in the instruction is criticized, to-wit: “and if you further believe that for said work the defendant negligently furnished said Nedeschulte an iron spike maul on a wooden handle with which to do said work,” on the ground that it gave the jury to understand that an iron maul on a wooden handle was not a safe and proper maul; that a wooden handle for such a maul was not a safe one, and that it was negligent to furnish such a maul. This clause is open to this criticism and had a tendency to mislead the jury. The clause is not explained or qualified by anything that follows in the instruction and would compel a reversal but for the following instruction given for defendant: “The court instructs the jury that there is no evi — 126 — dence in this case that either the spike maul or its handle here in question was either defectively constructed or made of improper or defective material and you are further instructed to disregard the evidence concerning the material out of which such maul or handle was constructed in determining the issues in this case.” With this pointed and direct instruction before it, we cannot perceive how the jury could have been led to believe it was instructed that a wooden handle was not a proper one to put in a maul. 3. Defendant contends that plaintiff assumed the risk incident to the use of the maul. The court’ gave the following instruction for defendant on this branch of the case: “The court instructs the jury that if you find from the evidence in this case that a spike maul wedged with an iron or wooden wedge or a nail is liable, when being used, to fly off the handle, then the risk of injury by being hit by such a maul is a risk assumed by the plaintiff when he entered the employment of the defendant, and he cannot recover in this case.” In view of this instruction, defendant has no.room to complain that the jury was not favorably instructed on this branch of the Case. The risk plaintiff assumed was the.risk of the mauls flying off their handles and striking him, after the handles had been put in and wedged in the customary manner. In respect to this particular maul, if there was negligence, it is attributable to Hutchinson in failing to wedge it in the customary manner, if he.neglected so to do, or to Nedeschulte in failing to discover that it was loose on the handle, if it was loose, when he took it in his hands for use on the day of the accident. Plaintiff did not use it, nor was it his duty to have seen that it' was properly wedged when the handle was put in, nor to inspect it when he was not using it, yet the court gave the following instruction for the defendant: — 127 — “If you find from the evidence in the case that said manl was defectively fastened on to the handle, and the plaintiff knew of that fact, or by the exercise of reasonable care on his part, conld have known of such fact, bnt went and worked about the same and was thereby injured, then he is guilty of such contributory negligence on his part as precludes a recovery, and you will find for the defendant.” This instruction shifted the duty from Hutchinson, the boss, to the plaintiff, the employee, to inspect the mauls generally. Sixteen instructions were given for the defendant which covered every phase of the case and some were given which injected into the case issues not raised by the pleadings, nor supported by the evidence. Those relevant to the issues and supported by the evidence presented the defendant’s side of the case as favorably as could have been done short of . a positive instruction to find for the defendant. Defendant contends, however, that the instructions are inconsistent and contradictory. The inconsistencies and contradictions, if there are any, were brought about by the.giving of erroneous instructions for the defendant. The plaintiff’s instructions, with the exception of the error in the first one (noted above) are in accord with the pleadings, are supported by plaintiff’s evidence, and, I think, properly declared the law of the case. Plaintiff’s counsel is accused of traveling outside of the record in his argument to the jury. The portion of his argument objected to was mostly an arraignment of one of the defendant’s witnesses. The argument was heated and may have been unjustified; it may have had a tendency to prejudice the jury against the witness and cause it to disregard his testimony or to look upon it with suspicion and incredulity. The trial judge, who saw the witness and heard him testify, heard the remarks of the counsel and observed their effect upon the the jury, if they had any effect, was in much better — 128 — position than we are to determine whether or not the improper remarks were so prejudicial to defendant as to warrant the granting of a new trial. He refused to do so-, and we do not think the facts shown in the bill of exceptions warrant us in reversing his ruling. Discovering no reversible error in the record, the judgment is affirmed. All concur.