150 Mo. App. 437 | Mo. Ct. App. | 1910
This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
The injuries complained of were received as a result of falling through a hatchway on the top of a tower maintained by defendant in connection with its brewery. The .tower in question is a square structure of concrete. It is said to be thirty feet in height, thirty-four feet square and used by defendant for the purpose of cooling water employed in manufacturing artificial ice at the brewery. Within the tower there are some large vats and it is to be inferred from the evidence that water, after being heated, is transmitted through pipes to the top of the tower, from whence it is dripped into the vats below for the purpose of cooling, but with this matter we are not concerned, except for the purpose of understanding the general situation. The top of the tower is covered with concrete and there is a concrete cornice on all four sides, which extends out about three feet from the tower. On all sides and at the extreme extensions of this cornice there is a concrete wall or coping, which rises to the height of about four and a half feet. It thus appears that the top of the tower consists of an open space about forty feet square, which is inclosed on the four sides by the coping referred to, four and a half feet high. This open space on the top of the tower is divided into four parts by two concrete walls which run crosswise from north to south and east to west about the center of the tower and they, too, are about four and a half feet high. In each of these four sections there are numerous pipes and coils of steam pipe, through which the
Plaintiff was in defendant’s, employ, his occupation being that of an oiler of machinery in the engine room, and he was entirely unacquainted with the top of the tower or the conditions which there obtained. Defendant’s engineer, having charge of the engines, was plaintiff’s immediate superior and directed him to go to the top of the tower for the purpose of adjusting the valves in connection with the steam pipes before referred to. It was in the month of December and after dark, the time being about seven o’clock in the evening. Besides, it was raining and the night was very dark. Plaintiff took an ordinary lantern with him, proceeding up the ladder and through the hatchway to perform the task as directed. After having reached the top of the tower, he passed over one of the division walls thereof, by means of certain steps constructed for the purpose, attended to the valves in
The petition alleges defendant was negligent in failing and omitting to provide either some kind of a guard about the hatclrway or a light thereat by which it could be located, and further that it was negligent in sending plaintiff, an inexperienced person, to perform the task assigned on a dark night Avithout instructions as to the dangerous condition of the hatclnvay. It may be said of the latter assignment of negligence that it seems to have been abandoned on the trial, for it was not referred to the jury in the instructions as a predicate of liability.
The court submitted the case to the jury as though defendant was remiss in its obligation to exercise ordinary care for the safety of its servant, if the jury believed an ordinarily prudent person would erect and maintain some sort of a barrier about the hatchway or would maintain a light or other warning signal
It may be that it was impractical to maintain a fence or guardrail about the hatchway, but no reason appears why a small light should not have been placed there for the guidance of such employees as were directed to move about on this high and dangerous place under the cover of night, in the midst of escaping steam and vapors which exuded from the pipes. It would seem that an ordinarily prudent person should take some reasonable precautions in the circumstances referred to, to the end of obviating the dangers which inhere in a hatchway constructed in the very floor of a place thirty feet above the ground.
But it is said if defendant was negligent plaintiff should be denied a right of recovery for the reason his own negligence contributed directly to his injury. The argument goes to the effect that plaintiff, having been furnished with a lantern, must have been careless in not discovering the hatchway immediately before him, for he knew it Avas in the floor uncovered and unguarded, having passed through it only five minutes before. The statement of the proposition suggests more or less persuasive reasons for the argument advanced, but when it is viewed in all of the circumstances of the case, Ave believe plaintiff’s negligence should not be declared as a matter of law. One should not be declared negligent as a matter of laAV merely because he was possessed of knowledge of the hatchway which occasioned his injury unless it appears that his conduct was so utterly reckless for his own safety that no two reasonable minds could diff er thereabout. The law requires that plaintiff
The court refused to instruct at defendant’s request that the law imposed, no duty on the defendant to warn plaintiff of obvious dangers or dangers known to him, and complaint is made here of this refusal. While the proposition of law involved is sound enough the matter is wholly unimportant on the present record for the allegation of negligence touching the failure of defendant to instruct or warn plaintiff about the danger in the hatchway was not submitted to the jury as a predicate of liability. Indeed, this allegation of negligence seems to have been abandoned by the plaintiff, for it is not so much as referred to throughout the case except in defendant’s instruction refused. This allegation of negligence having been abandoned, there is no error in the court’s refusal of defendant’s instruction. The judgment should be affirmed. It is so ordered.