| Mo. Ct. App. | Jun 5, 1905
— This is an action for personal injury which resulted in plaintiff’s favor in the trial court. We can dispose of a considerable part of defendant’s objections to the judgment by correcting an impression which must have prevailed when the brief was written as to the nature of the cause of action which plaintiff has set out. He has not complained of defective machinery in the sense of being compelled to use such machinery. The machine which injured him was not one with which he worked, but it was one situated near by the place where he worked and, as he contends, made that place unsafe. Under the latter view of the petition it clearly states a cause of action and all objections on that head which have been urged by defendant are not well taken.'
The defendant is. a corporation engaged in killing and packing meats at the city of St. Joseph and in such business it conducted a cooperage department where it made barrels and where plaintiff was engaged as a servant. There were fires where the barrels were heated, and when heated they were passed out and along to a number of employees who performed their assigned part of the work in the process of making them a finished barrel. Plaintiff’s duty was to receive the barrels when heated, “level” them on a plane surface provided for that purpose, and then pass them on to the man assigned to
. As the barrels were heated they were started on to
In stating how plaintiff came in contact with the fan we have not pretended to follow the language of any particular witness, but have described it according to the way the evidence shows it must necessarily have occurred. We are satisfied that a prima facie case was made for the plaintiff. There is no room for doubt that the plaintiff was hurt while engaged in the performance of his duty as an employee. The only questions in the case are, whether the injury was a risk of his employment and whether he was guilty of contributory negligence?
It appears clear that it was negligence in the defendant to leave so dangerous a device (noiseless in operation) as an electric fan to be hung so low down from the ceiling that one could walk into, or against it, and not have it, in some way, shut off from contact with those who might be at work near it. It was not machinery with which plaintiff was required to work, but it constituted a dangerous condition to the safety of the place. As much so as would be an open and unguarded well, or an unguarded opening in a floor. We said in Zellars v. Water & Light Co., 92 Mo. App. 121, in speak- ■ ing of the master’s duties to the servant: “He does not insure the safety of the place to work, but he does insure that he will not be negligent in his effort to have it safe. And if he is negligent in that respect, he is liable absolutely to the servant, unless, of course,- the servant was himself guilty of contributory negligence; or, unless it
Practically then there is but one question — and that is contributory negligence. It is the theory of defendant that as plaintiff might easily have walked around the platform and avoided the fan, he need not have stooped under it and ran into the fan. The theory of the plaintiff is that in the act of turning around, he found himself about to- go against the platform and that he stooped or “ducked” his head under it and thereby came in contact with the fan. There was evidence to support that view and we will not -say, as a matter of law, that under such circumstances he .'should have caught himself (as possibly he might have done) and walked around. Defendant says that he must have walked clear under the platform, that is, from one side to the other, as the fan was on the far -side from him. But it must be borne in mind that the platform was a very small affair, only between twenty-four and thirty inches wide, and that in “ducking” under it,, as expressed by witnesses, one might strike his head against an object on the opposite side while his body was just under the edge of the other side. Counsel use the expression that plaintiff to strike the fan would have had to pass “clear under” or “clear over to the other side,” as though it was quite a distance and that one Avo-uld have to- deliberately Avalk over to the fan. The fact is, as before intimated, that from one -side to the other of the small platform
The objections to evidence was numerous. What we have already written disposes of many of them. The remaining we believe not well taken. We think that nothing was admitted or excluded which in any manner affected the substantial merits of the case.
The instructions given for plaintiff were proper and were in keeping with the law as it is laid down in this State. [Curtis v. McNair, 173 Mo. 270" court="Mo." date_filed="1903-03-18" href="https://app.midpage.ai/document/curtis-v-mcnair-8014590?utm_source=webapp" opinion_id="8014590">173 Mo. 270; Wendler v. People’s Furnishing Co., 165 Mo. 527" court="Mo." date_filed="1901-12-03" href="https://app.midpage.ai/document/wendler-v-peoples-house-furnishing-co-8014118?utm_source=webapp" opinion_id="8014118">165 Mo. 527; Settle v. Railroad, 127 Mo. 336" court="Mo." date_filed="1895-03-12" href="https://app.midpage.ai/document/settle-v-st-louis--san-francisco-railroad-8011692?utm_source=webapp" opinion_id="8011692">127 Mo. 336; Pauck v. Dressed Beef Co., 159 Mo. 467" court="Mo." date_filed="1901-01-25" href="https://app.midpage.ai/document/pauck-v-st-louis-dressed-beef--provision-co-8013763?utm_source=webapp" opinion_id="8013763">159 Mo. 467.]
A careful examination of the whole record satisfies us that no error was committed which materially affected the merits of the case and the judgment must therefore be affirmed.