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943 at page 945, where the handhold on a box car gave way, resulting in injury, is strikingly applicable. The court in that case in another part of the opinion used the fol

ing still would not tend to pull the grabiron | was said in the case of Gutridge v. Railway out of its socket at the lower end, and that Co., 105 Mo. at pages 526 and 527, 16 S. W. in fact it would rather tend to hold it in its place; that by standing in the gangway of the engine and holding to it, although the engine was moving, would likewise have no tendency to pull the grabiron from the low-lowing language: "Defendant contends, also, er socket. The evidence shows that the grab- that the court erred in permitting plaintiff iron came loose and fell out when plaintiff to prove the condition of the handhold and bad released his hold on the grabiron which the car after the accident. This point is not was attached to the tender and swung out well taken. Plaintiff, in order to recover, away from the engine in the act of alight- was required to prove, first, that the handing. This would plainly exert a force on the hold was not safe; and, second, that defendappliance that would cause it to be loose and ant knew, or by the exercise of ordinary care come out at the bottom, and, the screw be- might have known, it was not safe. It seems ing out at the top, the grabiron could turn to use the only method open to plaintiff to and drop to the ground; and the jury had prove the defectiveness of the appliance was all the facts and circumstances before it to prove how it was fastened, and what conand could reasonably infer that this was ex-dition the screws and wood were in immeactly what occurred, as the grabiron was diately after the accident." found on the ground after the injury, and In the present case plaintiff showed the no trace was found of the screw. The evi- condition of the appliance immediately after dence showed that in backing the engine was the injury-that the screw was out-that, not subjected to any unusual bumping or when he started to swing off, the grabiron jarring such as would tend to loosen a tight turned and caused him to fall, to his injury; screw, and the jury could reasonably and that the threads shown in the eye socket logically infer that the screw was not in its looked good, and that there was no handling place when the engine left the roundhouse. of the engine between the roundhouse and the It would be no unreasonable inference from place of injury from which it could be reathe testimony in this record that the screw sonably inferred that a screw which was in was in fact out of its place when the engine perfect condition at the roundhouse could left the roundhouse-a place of inspection-work loose and come out in so short a disfor such a length of time that by the exer- tance. Indeed, appellant itself contends that cise of ordinary care the defendant could have discovered the defect and remedied it. In the Glasscock Case the evidence is that the operator, according to his own story, was guilty of contributory negligence in not reporting the fact that the gate was striking the pulley, while in this case there is no proof whatever that plaintiff had any knowledge that the appliance was not in proper working order. We conclude, therefore, that the facts of this case do not show that the appliance became defective within so short a time prior to the injury that the defendant could not in the exercise of ordinary care have discovered and remedied it; but that, on the other hand, the jury could under all the evidence reasonably find that the appliance became defective on account of the screw being out, and that it was out for such a length of time as to impute knowledge of the defect to the defendant.

[5] There is an ever-present duty resting on the master to use ordinary care to furnish reasonably safe appliances, and such duty is a continuing one; he must keep the appliances in proper repair so far as it can be done by the exercise of ordinary care, diligence, and inspection, and in the absence of knowledge of such defect being brought home to the employé he has a right to rely upon the master faithfully performing that duty. Parsons v. Railway Co., 94 Mo. 286, 292, 6 S. W. 464; Parker v. Railway Co., 109 Mo. 362, 392, 19 S. W. 1119, 18 L. R. A. 802. What

the evidence conclusively shows that the screw was tight in its place when the engine was within 100 feet of the place of the injury.

A

The picture of the engine and grabiron, which was before the jury, shows that this appliance is in no wise intricate, and that there was no need of expert testimony to explain to the jury how it could work loose, or whether it would work up or down. look at the picture reveals that merely pulling straight up or down in climbing on or off a standing engine would not tend to pull the lower end of the grabiron out of its socket; and, so long as it remained in the socket at the lower end, it is plainly seen that it would not and could not turn. Had the evidence shown that plaintiff or some one else had swung off of this moving engine five or six times within 30 minutes of the time of the injury to plaintiff, exerting an outward force such as plaintiff did when it gave way, and that it failed to give way, then the conditions might bring the defendant within the rule it seeks to invoke; but no such strain is shown to have been put upon it, at least not that day by the plaintiff. The jury had a right to infer that a screw, tight in its place, in threads of iron in good shape holding it to its place, will not work out and become loose in the short distance this engine traveled from the roundhouse to the place of the injury; and the jury certainly had enough evidence before it to justify a finding

that this screw was not in place when the engine left the roundhouse where it had been left to be inspected and prepared for its night run. With that fact found, it became a question for their determination whether the defendant exercised such reasonable care and inspection as to have discovered the fact that it was missing or that it was loose. The jury has passed on that issue under the instructions given, and so much is settled for all time.

[6] Appellant cites Warner v. Railway Co., 178 Mo. loc. cit. 134, 77 S. W. 67, and Goransson v. Riter-Conley Mfg. Co., 186 Mo. loc. cit. 307, 85 S. W. 338, in support of the following contention: "If the injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and, if the evidence leaves it to conjecture, the plaintiff must fail in his action" We see no application to this case of the rule announced in those cases, because in the absence of contributory negligence, which will be discussed presently, it is uncontroverted that the cause of the fall to his injury was occasioned by the giving way of the grab

iron.

It is contended by appellant that because

plaintiff could have remained on the engine

until it traveled 75 or 100 feet where it

would have stopped, and he could have alighted without danger, and since, therefore, he had two courses open to him, one safer than the other, and he voluntarily chose the way that was less safe, he was guilty of such contributory negligence as would preclude him from recovering that he was guilty of negligence as a matter of law.

We think the rule in reference to what constitutes contributory negligence on the part of a servant who has an absolutely safe way to get off an engine and one that is not so safe is and should be the same as that declared in the sidewalk cases in this state. It is apparent that, when a person comes to a defective looking place in a sidewalk, the absolutely safe way would be to turn back and go over some other street that is safe, yet, if he chooses to go over the defective place, he will not be held guilty of negligence as a matter of law, unless the danger was so apparent that a person in the exercise of reasonable care for his own safety would not have taken that course. Our Supreme Court in such a case used this language: "The knowledge of plaintiff is only a circumstance to go to the jury in determining the question whether in attempting to use the walk on the night in question she was exercising the care of an ordinarily prudent person under like circumstances. The court is warranted in acting only in those cases where, by giving to the plaintiff the benefit of every reasonable inference that may be drawn from her testimony and the surrounding facts, no other conclusions could fairly be reached than that she disregarded all rules of common prudence and caution in the act assumed. When known or manifest

danger is assumed or deliberately undertaken, the court can declare the legal effect thereof by a mandatory instruction, as was attempted in this case; but, when the thing undertaken is such that men or women of as to the hazard of the act, the question is ordinary intelligence might reasonably differ one of fact for the jury to determine. Nor can it be said, as further contended by defendant, that plaintiff was bound to abandon the use of the sidewalk in question, and pursue another course home, from the simple reason that the walk was known to her to have been out of repair, or be charged with all the consequences that did actually attend the attempted use of the same, without regard to the question of reasonable care and caution on her part." Graney v. City of St. Louis, 141 Mo. 180, 185, 42 S. W. 941. The same rule has been followed in Loftis V. Kansas City, 156 Mo. App. 683, 137 S. W. 993; Heberling v. City of Warrensburg, 204 Mo. 604, 103 S. W. 36; Chilton v. City of St. Joseph, 143 Mo. 192, 44 S. W. 766; Perrette v. Kansas City, 162 Mo. 238, 62 S. W. 448; Coffey v. City of Carthage, 186 Mo. 573, 85 S. W. 532; Howard v. City of New Madrid, 148 Mo. App. 57, 127 S. W. 630.

[7] We understand the rule to be that, where the servant of his own free will chooses an unsafe manner of doing his work or using his master's appliances when other and safer ways are at hand, he will not be permitted to recover for an injury, provided the way he has chosen is so dangerous that an ordinarily prudent person would not have undertaken it as he did. The following rule is given in 26 Cyc. 1250: "It is not contributory negligence on the part of a servant to follow a custom habitually followed by his fellow servants, to the knowledge of the master, unless the danger is so obvious that an ordinarily prudent person would refuse to take the risk arising from such a method of work." The fact that the servant did not take the course that was absolutely safe, but instead chose a less safe way, is some evidence from which it could be inferred that In those cases in this state where the unhe was guilty of contributory negligence; safe way was used by the servant and debut, before the court can say that the infer-clared in law to be contributory negligence, ence becomes conclusive as a matter of law, it must be shown that the way in which he did it was one that a reasonably prudent per

the way that was used was not only unsafe, but was apparently dangerously unsafe. See George v. St. Louis Mfg. Co., 159 Mo.

Co., 109 Mo. App. 88, 83 S. W. 66; and there | son in the exercise of ordinary care under are numerous cases to the same effect.

the same or similar circumstances would say We are cited to the case of Hirsch v. was dangerous to the extent that he would Freund Bros. Bread Co., 150 Mo. App. at be charged with negligence as a matter of page 172, 129 S. W. 1060. A sentence on this law. It is a question about which reasonable page standing alone would seem to hold that minds might differ as to the hazards conthe servant must choose the safest method, nected with the act, and, that being true, and that a failure to do so constitutes neg- should be submitted to the jury under proper ligence, but in the course of the statement instructions. In short, the distinction beand in the opinion the learned judge express-tween the Hurst Case and this case is that the ly shows that the method employed was one where "the particular danger which befell him was open and obvious." Plaintiff in that case placed his hand in an obviously dangerous place, which, of course, barred a recovery.

[8] Appellant also cites the case of Hurst v. Railroad, 163 Mo. 309, 63 S. W. 695, 85 Am. St. Rep. 539, where the court held that the injured party was guilty of contributory negligence as a matter of law in attempting to board a caboose that was running at a rate of six miles per hour. The court in that case found under the facts as a matter of law that the attempt to board the train was dangerous. The court did not decide that it was negligence as a matter of law for the employé to board a train going at a rate of six miles an hour, but did hold that an attempt to board a train going at that rate at the place where the employé attempted to do so where the ground was obviously unsafe was in law dangerous and negligent. In that case the danger, to wit, the rocks and chat left on the roadbed by the master, was visible and apparent to the employé, and it took the speed of the train coupled with this obviously unsafe condition of the track, both of which were known to the employé, to constitute negligence in law. In the case before us it was not the speed of the train that caused the injury; it was not anything that was obvious or that was known to the plaintiff that caused the injury. If he had alighted from the engine, traveling at the speed it was, and had stepped upon some place that was apparently, obviously unsafe, then he could be charged with doing that which a reasonably prudent person under the same or similar circumstances would not have done, but the evidence shows that Main street where plaintiff attempted to alight was smooth and even. The hidden danger in the grabiron caused plaintiff's injury. Had there been any evidence that he knew the grabiron was unsafe and he had attempted to alight when the engine was running at the speed mentioned, there would be some ground for the contention that he was guilty of negligence as a matter of law. But we do not believe a court can say in this case that a railroad man attempting to get off an engine going at a rate of six miles an hour when he thought the safety appliances were in proper condition, and the place where he attempts to alight is safe, did as a matter of law do that which an ordinarily prudent per

It was

dangerous place was obvious and known to the plaintiff in that case, and the defective condition of the appliance was hidden and unknown to the plaintiff in this case. The question here is not concerning the choosing between a safe way and an obviously dangerous way of getting off the engine. for the jury to say whether the way in which plaintiff attempted to alight was a reasonably safe way. The true rule is laid down in the case of Richardson v. Railroad, 223 Mo. 325, 123 S. W. 22, where the Hurst Case is cited and commented on. On pages 338 and 339 of 223 Mo. on page 26 of 123 S. W., the court used this language: "At the time respondent was injured, he and Lowry were attempting to couple the engine tank and stock car as they separated, and not by bringing them together. This was considered to be a safe plan, whether it worked or not. The simple fact that respondent was hurt and that the coupler on the engine tank was out of order does not conclusively show that he was guilty of contributory negligence. The result is not the true test, and the mere fact that a servant is injured because of the way of performing a duty which he selected, when if he had selected the other way injury would have been avoided, would not authorize the conclusion that he was careless." To declare a different rule than that which we have pointed out in this case would require a greater degree of care on the part of the servant than is exacted of the master. The employer is not required to furnish the safest place and the most modern appliances; he must exercise ordinary care in their selection and in keeping them in repair. Likewise, the servant is not required to use the appliances furnished him with the utmost care, the care the most prudent man might exercise; he is held only to that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances.

[9] The rule of the defendant company warning employés about getting on or off trains in too rapid motion necessarily implies that the employés may get on or off trains that are moving under conditions and circumstances that are apparently safe; so that as to whether the plaintiff was guilty of contributory negligence for violating the rule of the company resolves itself into a question of fact which the jury passed upon when it decided whether plaintiff's act was such as an ordinarily prudent man would have attempted. We hold that the question

as to whether or not there was contributory | 3. INSURANCE (§§ 716, 718*) FRATERNAL BENEFIT INSURANCE-CONTRACT. negligence was a proper one to be submitted to the jury in this case.

[10] It is true that while plaintiff was riding from the roundhouse to the station he was not at the time in control of the engine. But it was his duty to go to the roundhouse and prepare the engine for the trip, which he had done, and it was customary for him to ride back from the roundhouse to the station, where, within a few minutes, the engine was to be turned over to him and the regular engineer. He was clearly within the line of his employment from the time he went to the roundhouse until he fell and was injured. It was his duty to be at the station a reasonable length of time before his train started, and it was scheduled to leave within about 10 or 15 minutes after the time of plaintiff's injury. In swinging off for the purpose of going to a nearby lunchroom for a cup of coffee, while it cannot be said to be an act necessary to be done for the defendant company, it is one of the usual incidents of the service. Plaintiff was on the engine in the course of his employment, and the attempt to alight was not unusual, unwarranted, unlawful, or unnecessary. It was his duty and his privilege to refresh himself and keep himself in such condition physically as to perform the duties required of him; to this end, a man must eat and drink; and by doing so as the evidence in this case discloses he certainly could not be said to have voluntarily left his employment, nor to have been using the appliances furnished him by the master for a purpose for which they were not intended.

Entertaining the views herein expressed, we hold that the case was properly submitted to the jury under instructions that correctly declared the law.

Finding no error, the judgment is affirmed.

All concur.

GIBBS v. KNIGHTS OF PYTHIAS OF

MISSOURI.

A fraternal benefit certificate is always subject to the charter powers and constitution and by-laws of the order, when expressly agreed to; the rights of the parties being otherwise controlled by the contract, however.

[Ed. Note.-For other cases, see Insurance,

Cent. Dig. 88 1854, 1855; Dec. Dig. §§ 716, 718.*]

4. INSURANCE (8 770*)-FRATERNAL BENEFIT INSURANCE-BENEFICIARIES.

Rev. St. 1889, § 2823, authorizing a fraternal benefit insurance company to provide for the relief and aid of its members and their families, widows, orphans, or other kindred dependents of deceased members, forbids the desigmarriage, nor dependent upon a member, as a nation of a stranger not related by blood or beneficiary under the certificate.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1933, 1937; Dec. Dig. § 770.*] 5. INSURANCE (§ 780*)—Mutual Benefit InSURANCE-APPOINTMENT OF BENEFICIARIES.

Until insured's death, a new beneficiary may be designated by insured to take under a fraternal beneficial certificate, providing the beneficiary be qualified as such under the charter provisions of the association.

Cent. Dig. § 1946; Dec. Dig. § 780.*] [Ed. Note.-For other cases, see Insurance,

6. INSURANCE (§ 770*)—MUTUAL BENEFIT IN

SURANCE.

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Though a fraternal beneficial certificate was ultra vires, in that it was payable to insured's personal representative, when the charter of the tive or dependent, the association cannot on association required the beneficiary to be a relathat ground defeat recovery under the certificate where the contract has been fully executed, but the personal representative may recover it, but only in trust for the charter beneficiaries.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1944; Dec. Dig. § 777.*]

8. EXEMPTIONS (§ 50*)-MUTUAL BENEFIT INSURANCE.

In view of both the obvious intent of the statute regulating fraternal benefit associations, and an express provision thereof, and the direct (St. Louis Court of Appeals. Missouri. April provisions of Rev. St. 1909, § 7120, the benefit 8, 1913.)

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is exempt from attachment and execution or other claims of decedent's creditors.

[Ed. Note.-For other cases, see Exemptions, Cent. Dig. § 75; Dec. Dig. § 50.*]

9. EXECUTORS AND ADMINISTRATORS (§ 75*)—

ACTIONS-RECOVERY.

As a rule, an executor or administrator represents decedent generally, and in an action as such recovers to the use of the estate, so as to make the recovery available to all persons having just claims against the estate.

[Ed. Note.-For other cases. see Executors and Administrators, Cent. Dig. § 324; Dec. Dig. § 75.*]

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Abraham Gibbs, as executor of James Williams, deceased, against the

W. R. Hill, of St. Louis, for appellant. F. H. Bacon and Schlichting & Fisher, all of St. Louis, for respondent.

NORTONI, J. This is a suit on a certifiIcate of life insurance. Plaintiff recovered, and defendant prosecutes the appeal.

The principal question for consideration relates to the right of a personal representative of the insured, who is one not included within the class of beneficiaries authorized by our statute, to recover on the certificate when it appears the insured fully performed all of the conditions on his part, and the contract is fully executed excepting its payment by defendant. Subsidiary to this are the questions: If the executor is allowed to recover, may he do so in the interests of a legatee under the will to whom the insured bequeathed the fund or whom he nominated in the will as beneficiary thereof when it appears such legatee or beneficiary is not one of the class denominated by our statute as competent to receive such benefits; or shall the recovery be for the benefit of the estate of the insured and the fund turned into its corpus as available to all creditors; or may he recover alone as in trust for the benefit of those persons contemplated by the statute as beneficiaries and pointed out by the bylaws of the order as the recipients of the fund when no designation of a beneficiary

Knights of Pythias of Missouri, subordinate | was issued. Notwithstanding this fact, the to the Supreme Lodge Knights of Pythias Supreme Lodge Knights of Pythias of North of North and South America, Europe, Asia, and South America, Europe, Asia, and Afand Africa. From a judgment for plaintiff, rica, established subordinate lodges here, defendant appeals. Reversed and remanded, one of which was Mound City Lodge No. 4, with directions to render a certain judgment located in the city of St. Louis. The insured for plaintiff. affiliated with this lodge and, as before said, on September 30, 1892, received through it the certificate of life insurance payable at his death in the amount of $300 to his "legal representative or representatives." He paid all assessments and dues on the certificate, and as a member of the order as they accrued and were levied to the Supreme Lodge which had issued it until by an arrangement with all of its members that order, acting through the Supreme Lodge, organized and incorporated as subordinate thereto the defendant Grand Lodge Knights of Pythias of the state of Missouri. And thereupon and thereafter the insured paid all assessments and dues to the latter. It appears that in 1893, or about one year after the certificate was issued by the Supreme Lodge, the Grand Lodge Knights of Pythias of Missouri was incorporated in this state and under our statute authorizing such societies as subordinate to the Supreme Lodge, with headquarters in the District of Columbia, and succeeded to all of the affairs of the Supreme Lodge in Missouri. In September, 1893, the Supreme Lodge Knights of Pythias of North and South America, Europe, Asia and Africa withdrew entirely from further operations in the state of Missouri, and the Grand Lodge Knights of Pythias of Missouri assumed full and complete jurisdiction over the various subordinate lodges of the order in Missouri, among which was Mound City Lodge No. 4 of which the insured was then a member, and assumed, too, the obligations of the Supreme Lodge to its members on certificates of insurance, and all of the members, among them the insured, James Williams, agreed to this arrangement. Thereafter the insured paid all of his assessments and dues on his certificate as a member of the order to the Grand Lodge of the state of Missouri, so incorporated and operating under our statutes, and performed all the conditions imposed by the contract on his part until the date of his death, which occurred November 7, 1909. During all of those years the insured retained his original certificate of insurance issued to him by the Supreme Lodge in 1892, and at no time surrendered it to or requested a new certificate in lieu thereof from the Grand Lodge of the state of Missouri under whose jurisdiction he had come, and which had undertaken, with his consent, to assume the obligation of the Supreme Lodge in that behalf. By his last will the insured, James Williams, appointed the plaintiff, Abraham Gibbs, as his sole legatee thereunder, and also nominated him as the executor of the will. It may be that it was competent for the insured

has been made?

The suit proceeds jointly on the same certificate of insurance against two incorporated fraternal societies on the theory that, though one alone issued the certificate in the first instance, the other thereafter assumed its obligation, and, by collecting all of the dues and assessments from the insured member, became liable to respond thereon in accordance with its terms. There is no controversy touching the facts, for they are all set forth in an agreed statement on which a general judgment was given for plaintiff executor, who is himself the sole legatee under the will of the insured. The certificate of life insurance was issued to the insured, James Williams, on September 30, 1892, by defendant "Supreme Lodge Knights of Pythias of North and South America, Europe, Asia, and Africa," a fraternal beneficiary association, incorporated and with headquarters in the District of Columbia. It appears that this company never qualified as a fraternal beneficiary association under the Missouri Statutes and was therefore not licensed to do the business of life insurance as such in this state at the time the certificate in suit

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