Tucker v. Mine La Motte Lead & Smelting Co.

REYNOLDS, P. J. Plaintiff sues for damages alleged to have been sustained by him while moving a car on which was loaded what is called a “can” along a draft of the mine of defendant. The actionable negligence of the defendant charged and relied on is that a plank was so placed between the rails of the track [556] along which the car was being pushed by plaintiff that the wheels striking against it caused the car to tilt and so throw the “can” which was being carried on it, to fall off and catch plaintiff, fracturing the bones of one of his legs and bruising him on his body and limbs. The plank was placed by the foreman under whose immediate direction plaintiff was working. He had been employed in the drift, which was underground and dark, only two days, the accident occurring on the second-day. He admits he knew, the plank was there and so placed as to jar the car when the latter was pushed along the track and over it, but he testified that his foreman told him it was all right, and that he relied on this assurance. When the accident occurred he was pushing the car with his shoulder, his back to the car and he facing to the rear. In effect, he testified that' there was nothing on the track to jar the car unless it was this plank. Neither he nor any other witness testifies to having seen the car strike the plank, or that in fact it did strike it. When others went to the assistance of plaintiff, who had been operating the car alone, he was lying under the can, and the end of the car from him, the front of the car as plaintiff pushed it, was some twelve or eighteen inches off of and away from the plank; the car had not reached the plank by some twelve or eighteen inches. Thé incline of the track was toward the plank and if the wheels of the car hit the plank 'the car must have rebounded “up hill.” The defendant demurred to the evidence and that being overruled, the court, at the instance of plaintiff, gave several instructions, not now objected to. At the instance of defendant several instructions presenting the theory of the defense were given, two being refused. One' of them was on the theory that plaintiff-should not have pushed the car with his back toward it. There was evidence that this was the usual way of moving this car, so that this instruction'was correctly refused. Indeed, the learned counsel for appellant makes no> as [557] signment of error on its refusal. The other instruction asked by defendant- and refused is as follows: “13. The court instructs the jury that even though you should find and believe that a board was placed across defendant’s car track in such manner as to obstruct the wheels, or flanges on the wheels of defendant’s car, and that said board caused the hind wheels of said car to leave the track and thereby caused a can of ore to fall upon and injure plaintiff, yet if you further find and believe that the plaintiff was as familiar as defendant with the size of said board, and the fact that it obstructed the passage of said car, if it did so obstruct the same, then you will find that plaintiff assumed the risk of pushing said car and can over said board and cannot recover.” There was a verdict for plaintiff, awarding him five hundred dollars damages, and judgment followed, from which defendant, filing motion for new trial and in arrest and saving exceptions, to the action of the court in overruling them, has duly perfected its appeal to this court. Four errors are assigned. First, in the refusal of the instruction in the nature of a demurrer to the evidence offered at close of plaintiff’s evidence; second, the refusal of a like instruction at the close of all the evidence; third, in the refusal of the above quoted instruction; fourth, in overruling the motion for a new trial. The first and second assignments are untenable. There was evidence on which the jury might find for plaintiff under proper direction. It is true it is very slight, (but sufficient to warrant the jury in finding as it did. The instruction as to assumed ' risk, quoted above, was properly refused. It is the rule in this state that the servant does not assume the risks of the master’s negligence [Curtis v. McNair, 173 Mo. 270, 73 S. W. 167], unless it be in a case where the injury occurs from the particular mode or manner in which the servant uses the defective appliance when another safe [558] way to use it appears. [Harris v. Kansas City Southern R. Co., 146 Mo. App. 524, 124 S. W. 576.] The matter of the servant’s knowledge of the condition under the facts of the case seems to be one for consideration on the question of contributory negligence, and the instruction was properly refused. [Blundell v. William A. Miller Elevator Mfg. Co., 189 Mo. 552, 88 S. W. 103.] The judgment of the circuit court is affirmed. Nortoni and Oaulfield, JJ., concur.