Action for personal injuries. Plaintiff had a verdict below for $12,500, which verdict was set aside by the trial court upon the motion of the defendant, on the fourth ground of such motion (the court sustaining the motion on said ground alone), which reads:
"4. Because the court erred in overruling the demurrer to the evidence interposed by defendant at the close of the evidence on the part of plaintiff, over the objection and exception of defendant at the time."
From the order setting aside the verdict the plaintiff has appealed, and asks that the verdict be reinstated, and judgment entered thereon.
The grounds of negligence is thus stated in the petition:
"Plaintiff further states that on the 19th day of December, 1922, he was in the employ of the defendant and pursuant to his duties as a servant of the defendant was engaged with other servants of the defendant in tearing up one of defendant's railroad tracks at a point near Gratiot Station in the city of St. Louis, Missouri, and while so engaged plaintiff was struck in the right eye by a piece of metal, totally and completely destroying the sight of plaintiff's right eye; that plaintiff will be permanently blind in said right eye; that as a result of the injury of the right eye, the left eye will in the future also become involved, in which event the vision of the same will also be affected and may be completely lost; that plaintiff has suffered a severe shock to his nerves and nervous system: that his said injuries are serious and permanent.
"Plaintiff further states that his said injuries are the direct result of the negligence of the defendant, in this, to-wit. That the defendant, through its foreman, under whom plaintiff was at the time working and whose orders he was bound to obey, *Page 335 negligently directed plaintiff to use a spike maul in breaking or knocking off the bolts holding in place the railroad track which it was at the time engaged in tearing up, when the defendant and its said foreman knew, or by the exercise of ordinary care would have known, that it was dangerous to use a spike maul for that purpose, in that in using the same in that manner the said maul and the bolts, plate or rail with which it came in contact while being so used were liable to chip or splinter and cause such chips or splinters to strike plaintiff and injure him; that nevertheless the defendant through its foreman negligently directed plaintiff to do said work with said spike maul; that while plaintiff was engaged in using said maul in the manner directed by defendant's said foreman, as aforesaid, the same or the parts with which it came in contact while being so used chipped or splintered and caused a chip or splinter to strike plaintiff's right eye, injuring him in the manner above set out.
"That it was the duty of defendant to furnish plaintiff, while working as its servant, proper, necessary and reasonably safe tools and appliances with which to work, but that on the aforesaid date it failed to exercise ordinary care in that regard by furnishing plaintiff and requiring him to do the work above described with a spike maul, when the proper, usual, customary and safe method and the proper, usual, customary and safe tools with which to do said work was for one man to hold a chisel with a handle attached against the bolt or plate or other part to be broken or knocked off and for another man to strike the same with a hammer or maul; that the use of said spike maul in the manner which plaintiff was required to use it, as aforesaid, was a dangerous and unsafe way of doing said work, and was not reasonably safe, and the said spike maul was an improper, dangerous and not a reasonably safe tool with which to do said work, in that the said spike maul and the bolts or rail or parts attached thereto with which it came in contact while being so used were liable to chip or splinter and cause such chips or splinters to strike plaintiff and to injure him; that the same did chip or splinter while plaintiff was using said maul for the purpose and in the manner in which he was directed to use the same as above set out, causing a chip or splinter to strike his eye and injure him as above mentioned."
The answer consists (1) of general denial, (2) a plea of contributory negligence, and (3) assumption of risk. Reply was a general denial. Such are the issues made by the pleadings.
I. The evidence for the plaintiff (under the trial court's order setting aside the verdict) is of prime importance. This evidence is short and clear upon the questions, although plaintiff, and perhaps *Page 336 one of his witnesses had to speak through an interpreter. For some years the plaintiff had been working for defendant in the capacity of a section hand, doing all things pertaining to work usually done by such men, and working under a foreman. The day prior to the day of the accident he was engaged in cutting nuts upon the ends of bolts which held the iron rails of the tracks together. The work was upon a "Y" in a yard of tracks. The usual method of cutting the nut from the end of a bolt was to place a chisel, eight to ten inches long, and about one and one-fourth inches wide (at the lower, or cutting, end of the chisel), in the center of the nut, which chisel was held in place by one man, and another man would strike the chisel with a sledge hammer. The chisel being upon the upper edge of the nut, and being driven downward by the blows of the hammer, the evidence tends to show that particles of rust, steel or iron would fall to the ground and not go upward. This method of getting rid of these rusty nuts and bolts was the one usually used by the defendant, as appears from the evidence, and also the usual method used by some other railroads, likewise shown by the evidence. Late on the day before the accident, and shortly before quitting time, the chisel with which plaintiff and a colored man were cutting nuts was broken. The foreman then directed plaintiff to get a spike maul, as distinguished from an ordinary sledge hammer, theretofore used on the chisel. By the use of this spike maul the end of the bolt would have to be broken off, or the nut so broken that it would fall from the rusted bolt. The evidence tends to show that slivers of rust, iron or steel would fly upward and in other directions, by this method.
The next morning (the day of the accident) plaintiff called for a chisel, but the foreman directed him to proceed with the spike maul until a chisel could be secured. Plaintiff objected, but the foreman told him to proceed. He did proceed, and in the work broke one spike maul, and the foreman told him to get a spike maul from another workman near by and go on with his work. This plaintiff did, and after working a very short time he struck a nut with the spike maul and a sliver of steel or iron flew up and struck him in the right eye, which eye was put out, and according to the evidence of doctors the other eye was sympathetically affected, and the deterioration and loss of sight is progressing in the other eye.
From the plaintiff's side these are some of the material facts.
II. Learned counsel for appellant first undertakes to justify the action of the trial court in sustaining the motion for new trial on the ground that plaintiff made no case for the jury. In this there is a clear misconception of the negligence pleaded in the petition. The petition is broad enough at least to cover two grounds of *Page 337 negligence, i.e. (1) a negligent order upon the part of the foreman (the vice-principal) to do the work in an unsafe and dangerous way, and (2) the negligent failure to furnish a chisel and sledge hammer, the usual (and from the evidence the safe) tools with which to do the work in hand. Upon either of these theories there was evidence to take the case to the jury, and the same were within the pleadings. There is clear evidence of a failure to furnish the usual tools for the doing of the work in hand. There is clear and pointed evidence that slivers and pieces did not fly upward from the parts when the men were cutting the nut with a chisel and sledge hammer, and that they did fly in all directions when the work was done in the other way. These two grounds of negligence were submitted to the jury by plaintiff's Instruction I.
It is urged (and cases are cited under the contention) that "it is speculative and conjectural whether the piece of metal which struck plaintiff's eye came from the spike maul or from the bolt or nut." This contention is wholly beside the real question. If the plaintiff was negligently ordered to do the work with improper tools, and in a dangerous and improper manner and the injury occurred thereby (which questions were submitted to the jury) it is utterly immaterial whether the metal flake came from the maul, the nut, the bolt, or even the rail. Nor is it material as to from whence it came, if the defendant negligently failed to furnish the plaintiff with proper tools with which to do the work, if such negligent failure was the occasion of the injury. There is some evidence strongly tending to show that the metal piece taken from plaintiff's eye came from the spike maul, but as said that is immaterial as above stated. This is not a case wherein is alleged the furnishing of a proper tool, but a defective one. The grounds of negligence pleaded and submitted, we have stated, supra, and shall not prolong this opinion by reiteration.
III. If the accident was occasioned by the negligence of the defendant, as the case was submitted to the jury by the plaintiff, and the jury found such negligence, then there is no room for the doctrine of assumption of risk under the rule in this State. The servant under our rule (and this is a case under the State rule) never assumes the risk which grows out of the negligence of the master. [Williams v. Pryor, 272 Mo. l.c. 624 et seq.]
The strongest evidence that the foreman gave a negligent order, and failed to furnish proper tools is that defendant itself had customarily used the sledge and chisel, as did also other railroads in the vicinity. The very physical facts would tend to show that there was less danger in driving a sharpened chisel through the rusty nut, than there would be in the haphazard method of striking to *Page 338 break either the nut or the end of the rusted bolt. In the latter method there was more danger in striking all of the surrounding objects, i.e. the nut, the bolt, the angle bars which were used to make solid the rail joints, or even the rail itself.
In addition, under this point, it is not out of the way to say that the danger was not so imminent and obvious as to make the use of the method and means of the work, contributory negligence as a matter of law. It was a question for the jury. What we have said thus far demonstrates the correctness of the court's action in refusing defendant's Instructions B and C, of which complaint is made. Instruction B is in effect a peremptory instruction to find for defendant upon the alleged negligent order of the foreman. Instruction C is practically a peremptory instruction to find for defendant upon the alleged failure to furnish proper tools. Both questions have been discussed, supra, and both questions were for the determination of the jury under the facts and circumstances shown by the evidence.
IV. There is some complaint about the excessiveness of the verdict. We have stated the facts. One eye is gone, and the injury to it is such as to occasion the progressive decline of the other eye.
Under these facts this court has fixed $12,500 as a proper measure of damages. [Adams v. Railroad Co., 287 Mo. l.c. 554.] In that case we said that there was a "lurking chance" of the impairment of the remaining eye, and cut a $20,000 verdict to $12,500. Under the evidence in this case there is more than a "lurking chance." To like effect is Knott v. Missouri Boiler Sheet Iron Works, 253 S.W. l.c. 758, in which the Adams case is approved by Division Two of this court. So, both divisions have approved the exact amount of the verdict in this case.
The order granting a new trial is reversed, and the cause remanded with directions to the circuit court to set aside such order, and to enter up judgment for plaintiff upon the verdict returned in his favor. All concur.