
    L. F. MEYERS, Respondent, v. O’BEAR-NESTOR GLASS COMPANY, Appellant.
    Kansas City Court of Appeals,
    February 17, 1908.
    1. MASTER AND SERA/ANT: Contributory Negligence: Defective Wagon: Demurrer to the Evidence. On a review of the evidence a teamster of forty years’ experience who used a wagon knowing that its double-trees were so insecurely fastened as to be dangerous and in such negligent manner as to add to the hazard, is held guilty of contributory negligence though he complained of the defect and its repair had been promised.
    
      2. -: -: State of Mind: Evidence. If a certain state of mind, as whether a servant thought he could use a given defective implement with safety, is in issue to allow a case to pass off on the mere ipse dixit of such servant that his mind was thus or so would he to allow him to decide the case for himself, and the eourt or jury would have nothing to do hut to enter the verdict.
    Appeal from Jackson Circuit Court. — Eon. James E. Goodrich, Judge.
    Reversed.
    
      Warner, Dean, McLeod & Timmonds for appellant.
    (1) The lav? does not impose upon the master the obligation to furnish a good and sufficient appliance. He Js not an insurer of the safety of the appliance, he furnishes. He is only bound to use ordinary care in furnishing reasonably safe appliances. Goins v. Railroad, 37 Mo. App. 221; Harrington v. Railroad, 104 Mo. App. 663; Grattis v. Railroad, 153 Mo. 403; Blanton v. Hold, 109 Mo. 64; Covey v. Railroad, 86 Mo. 635. • And the petition having charged a higher duty upon defendant than the law imposes, it is fatally defective. Canter v. Mining Co., 35 Fed. 41. (2) Plaintiff’s own testimony shows that he assumed the risks, and that he was guilty of contributory negligence. Hicks v. Railroad, 46 Mo. App. 304; Marshall v. Press Co., 69 M'o. App. 256; Harrington v. Railroad, 104 Mo. App. 663; Pohlman v. Oar Co., 100 S. W. 544; Cox v. Granite Company, 39 Mo. App. 424; Porter v. Railroad, 71 Mo. 66; Bohn v. Railroad, 106 Mo. 429; Glover v. Bolt Co., 153 Mo. 327; 189 Mo. 552, 562; 195 Mo. 664; 197 Mo. 267.
    
      Ralph S. Latshaw for respondent.
    (1) Chenoweth v. Sutherland, 101 S. W. 1105. (2) Appliances such “as are usually and ordinarily furnished by ordinarily and reasonably prudent and careful persons engaged in similar work” is not an objectionable criterion of the master’s obligation to the servant. Morton v. D. G. Co., 103 S. W. 591; Brunke v. Telegraph Co., 115 Mo. App. 36; White v. Railroad, 84 M'o. App. 411; Hunt v. Lead Co., 104 Mo. App. 377; Kane v. Paulk Co., 93 Mo. App. 209; O’Meilla v. Railroad, 115 Mo. 205; Henry v. Railroad, 66 la. 52; Maynard v. Buck, 100 Mass. 40; Reed v. Railroad, 94 Mo. App. 371; Spencer v. Bruner, 103 S. W. 578; Garaci v. Hill-O’Meara Const. Co., 104 S. W. 595; Schaefer v. Railway, 128 Mo. 64, 30 S. W. 331; Taylor v. Iron Co., 133 Mo. 349; 34 S. W. 581; Chenoweth v. Sutherland, 101 S. W. 1108.
   ELLISON, J.

Plaintiff was in the employment of defendant as a teamster. He was injured while in that employment. He claims the injury was caused by defendant’s negligence and brought this action in which he recovered judgment in the trial court.

Since the verdict was for the plaintiff, we will regard all the substantial evidence in his behalf as established in fact, and dispose of the case on that basis. He testified that he was sixty-two years of age and had been a teamster for forty years. At the time of his injury he was hauling dirt for defendant, and had been, for several weeks. He used two wagons, one his own and the other was defendaot’s, and he would haul one load away while the empty one was being filled and then return for the latter. When hurt he was hauling a load with defendant’s wagon. This wagon had a defect in that the “hammer strap” was not bolted or otherwise securely fastened to the tongue or pole of the wagon. A hammer strap was stated to be an iron strap a few inches long, with hole for a bolt at either end. On one end the bolt would run through the strap, through the double-trees and one through the tongue, the strap bending downward back towards the other end, a smaller bolt would run through the strap and tongue. Being thus bolted to the tongue, the double-trees held to the tongue at the front end of the strap, could not pull off, neither could the bolt running through them pull out. In the strap in question here there was no bolt at the small end to hold it down to the tongue, and thus, unless remedied in some way, the double-trees at the other end were liable to pull out or off the tongue, especially if the wagon was loaded. To remedy the lack of a bolt, defendant had used a wire— common baling wdre — with which the strap was tied or fastened to the tongue by being run through the hole where the bolt should be and thence through the tongue. Plaintiff says that he noticed this from the beginning of his work for defendant. That with heavy loads, at perhaps two difficult places, there was great danger of the wdre giving way and thus allowing the other end of the strap to let the double-trees out, which would amount to detaching the horses from the wagon and thus start them suddenly ahead and jerk the lines from the driver or pull him off. That at several times this wire had given way and plaintiff had several times complained' of such contrivance being used, and defendant’s superintendent promised more than once that it should be fixed. He told him at one time when he complained of the wire, that it was safe. The evening before plaintiff asked that it be made secure and again received an affirmative promise. The next morning he was hurt in taking the first load. He saw that the wire was still in use. At one place in his testimony he said he did not notice, but in other statements he leaves no doubt but that he knew the wire was still in use. He drove up in his own -wagon, but the other being loaded, he unhitched from his and hitched to the other. He says: “I drove in there and they had this wagon loaded at the pit. Of course, I just dropped off my wagon an.d hitched onto the load. We had to come about the distance of a block, and we came to a little hill that was up grade, and just about tbe time tbe team made out to get up it — I had been standing on the top of tbe load; it was cold that morning, and I bad bard work to bold tbe team. I bad my lines wrapped around my hands— Avben I got up there the pin that held tbe double-tree broke, and tbe team just went forward like a flash of lightning and I was pitched for ten or fifteen feet. Tbe wagon went back and tbe team forward.”

He stated that be knew tbe Avire was liable to give way any moment in pulling up tbe incline where he was hurt. He knew that by sitting down on the load there was no danger if it broke, but that by standing-up there was danger of being dragged off tbe wagon by tbe sudden forward movement of tbe horses pulling the lines; but that if be would let go of tbe lines, even when standing on tbe load, be would be safe.

We thus have for a complainant a man of mature age and forty years experience as a teamster, necessarily with as full knowledge of a wagon, its gearing and its use, as any one could obtain. We have him AVitb full knowledge of tbe defect in tbe contrivance to bold tbe double-trees and of tbe danger in using- it. But more than that, while be knew of tbe liability of the wire to give way at any moment, be knew that to stand on the load was to put himself in the way of injury, when by sitting down he would be safe. But to add to what seems to have been entire indifference to‘danger, be not only stood up, but be bad tbe lines wrapped around his hands, so that if tbe double-trees gave way and the horses “went forward like a flash” as he expressed it, he necessarily would be jerked off tbe wagon. He stated that if he bad merely held tbe lines, though standing up, he could let go and probably Avould not get hurt. He admitted that be did not think of the matter of Avrapping tbe lines around his hands, else be would not have done it.

It Avould be extremely hazardous to tbe employer of any line of ordinary labor, like that of a teamster, if he should be held liable for mishaps to those in his employ, whose work is with such simple and common instruments that the employee must necessarily know as much (in many instances even more) than such employer.

In Blundell v. Manufacturing Co., 189 Mo. 552, 562, it is said that a laborer “w'ho uses agricultural instruments while at work upon a farm o.r in a garden, or one who is employed in any service not requiring great skill and judgment and who uses the ordinary tools employed in such work, to which he is accustomed and in regard to which he has perfect knowledge, can hardly be said to have a claim against his employer for negligence, if in using a utensil, which he knows to he defective, he is accidentally injured. It does not rest with the servant to say that the master has superior knowledge and has thereby imposed upon him. He fully comprehends that the instrument which he employs is not perfect, and if he is thereby injured it is by reason of his own fault and negligence. The fact that he notified, the master of the defect and asked for another instrument, and the master promised to furnish the same, in such a case, does not render the master responsible if an accident occurs.”

In discussing this subject the Supreme Court said “Treating it as a question of contributory negligence the rule of law is that if the danger arising from the master’s negligent act is so obvious that the servant, considering his capacity and opportunity, must have known and realized its degree, the court would declare his act of so continuing in his work contributory negligence as a matter of law, but if the peril was not so obvious, if the danger was such as to make it a question whether or not the servant, considering his capacity and opportunity of judging, might reasonably expect that he could continue the service by exercising ordinary care, then it is a question for the jury.” [Dakan v. Chase & Son Mercantile Co., 197 Mo. 238, 267.] As already shown, the plaintiff knew all the danger there was in the contrivance. He knew and in effect said tha t he could not continue to work with it safely, with ordinary care. But in addition to that, instead of using ordinary care, he chose the most careless conduct he could adopt by standing up on the load and wrapping the lines around his hands, so that he would almost necessarily be jerked off.

It is true that at one part of his testimony he said that he thought he could use the wagon safely. But that was a mere formal statement. His whole evidence shows that it was not true. It shows that he was not relying on any promise to remedy the defect, and his mere statement of a condition of mind ought not to control what patently appears otherwise. “If a certain state of mind is in issue, to allow a case to pass off on the mere ipse dixit of the person, that his mind was thus or so, would be to allow him to decide the case for himself, and the court and jury would have nothing to do but to enter a verdict.” [Knorpp v. Wagner, 195 Mo. 637, 665.] As bearing, in some particulars of fact as well as law, on the case at bar, we refer also to a case in this court: Hicks v. Railway, 46 Mo. App. 304.

We think defendant’s demurrer should have been sustained. We regard the judgment as without legal support and hence order that it be reversed.

All concur.  