Harris v. Railroad.

claws under the spike, and he then without Morris's assistance attempted to pull the spike; that in so doing he threw his whole weight upon the bar, and when it slipped, as it had done every time theretofore, he was thrown down and struck his knee upon the head of a spike and thus received the injury to the knee complained of in this action. On his cross-examination he thus describes the situation:

"Q. How many spikes did you pull before this accident? A. I think about ten, I guess.

"Q. Did it slip out any other time? A. Yes, sir; four or five times on every spike.

"Q. Four or five times before that? A. On every spike.

"Q. Slipped on every spike? A. Yes, sir.

"Q. Did you see this other man working with this bar before you got it? A. Which man?

"Q. Joe Morris. A. We was both working there together.

"Q. Did you work with this crow-bar? A. No, sir; generally always drove it up with a hammer.

"Q. Was he driving it up at the time you was injured? A. Yes, sir; he drove it up.

"Q. Where was he at that particular time? A. Standing by me.

"Q. Looking at you? A. I don't know, he was there ready to bear down on the bar when I did. "Q. Did he bear down on the bar with you? A. No, sir.

"Q. Did he bear down on the bar those other times when it had slipped off the spikes? A. Yes, sir.

"Q. Did you fall the other times? A. No, sir; never fell before.

"Q. How did it happen you didn't fall before? A. Just happened I didn't bear down hard enough to fall; throw my weight on it hard enough to fall.

"Q. Did you throw more weight on to this one

Harris v. Railroad.

than the others? A. On that one, I throwed my whole weight on it.

"Q. Did you fall because you didn't have a good hold on the bar? A. I had hold on the bar.

"Q. You did have a good hold? A. Yes, sir; the bar fell when I did.

"Q. What made you say you thought you had a good hold on the bar? A. I said I thought I had a good hold on the spike with the bar.

"Q. You didn't say spike a while ago. A. That is what I was talking about.

"Q. Did Morris fall when he was using this spike puller? A. No, sir; he never would bear down hard enough on it to fall.

"Q. That is what makes it fall, bearing hard on it? A. The bar slips is what makes it fall.

"Q. What makes you say he didn't bear hard enough to fall? A. He never did fall.

"Q. How long was this projecting point of the bar that you have described to the jury? A. I suppose about as long as your fingers.

"Q. And the place is about as big as this, when your fingers are spread apart? A. Only they are worn out.

"Q. How big are they naturally? A. The other one was not half as wide in between as this old one, the good one wasn't."

As we gather it from the evidence a claw-bar is a bar of iron five or six feet in length, having at one end two forks something like those of the ordinary clawhammer, and back of these claws or forks was the heel, which extended back of the handle, as the prongs or claws extended to the front of the handle or bar. This heel served a dual purpose, i. e.: (1) the operator struck it with a maul to drive the claws under the head of the spike, and (2) it served as a fulcrum when the operators bore down upon the handle to draw the spike. It is shown that these forks or claws were

Harris v. Railroad.

worn so that they were wider apart than in a new bar, and that the heel was battered from the use of the maul or hammer. Other matters of evidence may be required and will be given in the course of the opinion at the proper point. For the present this sufficiently states the case.

Contributory
Negligence.

I. That it is the general law that the master must furnish to the servant a reasonably safe tool or appliance with which to work cannot be questioned. In this case able counsel for de fendant urges with much force that the broad rule does not and should not apply to simple appliances, such as the one here involved. Much learning is collated upon this question as well as upon other questions. Much is said by our brothers of the Court of Appeals, but to my mind we need not go into these contested questions for a determination of this case. This case is determined by plaintiff's statement of the facts. Grant it that he did not at first fully appreciate the condition of this claw-bar, because that can be granted and leave the net result the same. Plaintiff says that they used this bar upon ten spikes before they used it upon the one being pulled at the time of his alleged injuries. He further says that it slipped off of each of these spikes four or five times. Yet, with this knowledge, gained by this experience, when the claw-bar is placed upon the last spike, without waiting for the help of his co-employee, he deliberately threw his whole weight upon the bar. When he did this, he had good reasons to know that the bar would slip and if it did slip, he knew that he must fall. With his whole weight thrown upon the bar he could do nothing else but fall, if the bar slipped from the head of the spike. As a man of any sense he knew that he must fall from this act if the bar should slip, and he further knew that the bar had slipped upon each and every previous spike. As to the latter he so testifies.

Harris v. Railroad.

Had he waited for his co-employee and had he not thrown his whole weight upon the bar the result would have been different, although the claw-bar might have slipped. The act of throwing his whole weight upon this claw-bar under the circumstances of this case was negligence upon the part of the plaintiff, and this negligence was the direct and proximate cause of his injury. Such negligent act may have been combined with negligence of the defendant in producing the injury, but this does not help the plaintiff's case. To my mind the case turns more upon the facts than upon the law. We can concede all the legal questions contended. for by the able counsel for plaintiff, but we cannot concede from this case this patent fact made apparent by plaintiff's version of his case. If for no other reason this judgment should be reversed on the ground of plaintiff's contributory negligence, which contributory negligence is made to appear by the evidence for plaintiff. Where the contributory negligence is made to appear by the plaintiff's proof of his case, the character of defendant's pleadings is not very material. [Sissel v. Railroad, 214 Mo. 515.]

It requires no citation of authority upon the proposition that if the negligence of the plaintiff coupled with the negligence of the defendant is the proximate cause of the injury, then the plaintiff cannot recover. In this case it may be conceded that the defendant was negligent in furnishing this unsafe simple tool or appliance, and yet the injury would not have occurred but for the rash and negligent conduct of the plaintiff in throwing his whole weight upon a claw-bar which he knew had slipped upon each previous spike. To use his own language, "I throwed my whole weight on it." The most inexperienced boy should have known better under the facts disclosed by this record. Let the judgment be reversed. All concur; Woodson, P. J., in result.

250 Mo.-27

Chaput v. Pickel.

ALEXANDER CHAPUT et al., Appellants, v.
GEORGE PICKEL.

Division One, May 31, 1913.

1. LIVRE TERRIEN: Made in 1768 by St. Ange. A grant of land lying within the present limits of St. Louis, made in 1768, by St. Ange or Labuxiere, or both of them, unless confirmed by the authority of the Spanish government, was invalid and void; and though it appear as a part of the book "Livre Terrien" in the office of the Secretary of State it will not be held to have conveyed any title to the named grantee, unless it be shown that the Spanish government confirmed the attempted and otherwise unauthorized and illegal grant. St. Ange, who had been the lieutenant of the French government in Illinois prior to the treaty of 1763, ceding the country east of the Mississippi River to Great Britain and that west of it to Spain, after that treaty, crossed over to St. Louis, and supposing the territory west of the river still belonged to France made grants of land as he had formerly done, but he had no authority to do so, and while the Spanish government confirmed some grants made by him, yet it has been uniformly held that none of his grants are to be considered legal unless such confirmation is shown.

2.

:

Copies Evidence.

While it is provided by statute that copies of the contents of the land book called "Livre Terrien" in the office of the Secretary of State are admissible in evidence, yet the statute also expressly states that the copies are admissible "with like effect as the original;" and if an original grant found in that book, or elsewhere, is invalid and for that reason inadmissible in evidence, because made by St. Ange and not confirmed by the Spanish government, so is the certified copy inadmissible.

3. GOVERNMENT PATENT: To Representative: Not Shown to be in Esse. Where plaintiffs claim title through a Government patent to the "representative" of Joseph Calve, who had been dead fifty years at the time the title emanated from the Government in 1845, and they totally fail to show that his daughter, under whom they claim, was his representative and entitled to some interest in the land, or that she was alive at the time the patent issued, an essential link in their chain of title is missing, and they cannot recover in ejectment upon their independent paper title alone.