104 Mo. App. 377 | Mo. Ct. App. | 1904
The defendant is engaged in mining and reducing lead ores in St. Francois county, Missouri, and has over its mine a large mill or reduction works. To generate steam to propel the machinery of the mill, it has a boiler or battery room located forty or fifty feet from the mill. In this boiler room are three boilers, two of the Heine, and one of the' Babcock make,
She further alleges, “that defendant knew of the unsafe and dangerous condition of said pit; that it was unsafe for her husband to enter the same; knew that the colaborers with Hunt were inexperienced and incompe- ■ tent, and knowing these facts, retained them in its employ. And alleges that had defendant used due care and caution such as was incumbent upon it and provided a reasonably safe place for her husband to work, that he would not have been killed. ’ ’
Defendant’s answer was a general denial and the following plea of contributory negligence:
“Further answering, defendant alleges that plaintiff’s husband was a man of mature years, good judgment and a good degree of experience in life; that he well understood the business he was engaged in; that he knew whether it was safe for him to enter the place where he met with the accident that resulted in his death notwithstanding which he, of his own volition, entered into the place where he received the injuries which resulted in his death; that he entered the same of his own accord and without any command or direction from the defendant; wherefore, defendant alleges that he assumed the risks attending such actions and conduct and is therefore estopped from asserting any claim for the injuries, and prays judgment.”
The new matter alleged in the answer was put at issue by a reply. The jury found for plaintiff and awarded her three thousand dollars damages. After unavailing motions for new trial and in arrest of judgment, defendant appealed.
Beaumont, a witness for plaintiff, testified that while he was working in front of the batteries, Sherin came around and ordered him to go and help clean out one of the ash-pits; that he went and when he got there he found Frank Hunt; that he never was at the ash-pit before and had never seen.Hunt there until that time; that to get into the ash-pit you had to get on your, hands • and knees and crawl through the manhole; that he-
Thomas Emory, a witness for the plaintiff, testified that he heard Flack tell Sherin he thought it would be too hot to work in the ash-pit or boilers until the afternoon when Sherin stepped up and turned on the hose; that this was after Flack had ordered Sherin to scatter his men and after Flack and Beaumont had gone from the front end of the boilers.
The evidence further shows that Hunt had been a farmer, living and working on a farm, and that he had ' worked for the defendant only one day previous to the day he was scalded, and was inexperienced about mining or mill work. The evidence also shows that Sherin was in Farmington (where the case was tried) on a day during the progress of the trial but he was not produced as a witness by defendant nor was his absence accounted for.
Frank Burlbow, a witness for plaintiff, testified over the objection of the defendant, that he told Sherin that Hunt was a “green hand” and that it was not safe for him to work in the ash-pit. Silas Longrear, over defendant’s objection, testified as to what had been the custom in cleaning the ash-pits, and that it was unsafe
It was shown that plaintiff was the wife of the deceased Hunt.
At the close of plaintiff’s evidence and again at the close of all the evidence, defendant moved for peremptory instructions to find for it which the court refused.
For plaintiff the court gave the following instructions :
“1. You are instructed that if you shall find from the evidence in this cause that on or about the eleventh day of August, 1901, the deceased Frank Hunt, was an employ of defendant and was as such engaged in cleaning out the ash-pit in the rear of one of defendant’s boilers, and that while doing said work he received certain scalds, burns and injuries on account of water being turned into and on the hot ashes in said pit contained, and that said Hunt thereafter on the fourteenth day of August, died from the injuries so received and shall further find that the injuries by him were the direct result of defendant’s negligence, if any, as hereinafter defined and that such injury was not the result of any negligence of deceased directly contributing thereto at. the time, and shall further find that said Hunt was the husband of plaintiff at the times heretofore stated, then your verdict shall be for the plaintiff in such sum . as in your judgment would be a fair compensation to her for the loss of her husband, not exceeding five thous- and dollars.
“2. You are further instructed that if you shall find from the evidence that defendant, by its agents, directed plaintiff’s husband to go into the ash-pit to clean it out and knew at the time, or by the exercise of reasonable care could have known, that the ash-pit contained large quantities, of hot and smouldering ashes and that they had not been sufficiently cooled, and that it was therefore dangerous and unsafe for Hunt t.o do the work*386 in the manner in which he did, then yon are warranted in finding defendant guilty of negligence, and the plaintiff is entitled to recover, unless you should further find that Hunt was guilty of negligence in doing the work in the manner and under the'circumstances in which he did.-
“3. You are further instructed that if defendant knew or by the exercise of reasonable care, could have known, that the ash-pit in which the deceased was at work contained hot and. smouldering ashes and was in a dangerous condition, if you should find that it .was in fact dangerous, when deceased entered it, a~d shall further find that deceased was unfamiliar with the special work required of him and did not know the condition of the ash-pit and the danger attending upon the use of it in the manner in which he did, then and in that event he did not assume the risk of injuries arising from doing the said work unless you should find that the danger was so obvious and glaring, considering the position in which deceased was placed and his time and opportunity for discovery, that no prudent man under the same conditions and circumstances could have failed to discover said danger. ‘
■ “4. You are further, instructed that although you may believe from the evidence that when the deceased went into the ash-pit he knew or by the exercise of reasonable care could have known that there was danger in doing so, but if owing to the order of his superior to enter the pit (if you find that he was so ordered) he had reason to believe that he could with safety do the work by the exercise of reasonable care on his part, or if the danger was not so obvious or apparent that a reasonably prudent man similarly situated would have refused to obey the order and shall find that deceased in obeying said order did exercise all the care incident to the conditions in which he was placed, then the deceased was not guilty of such contributory, negligence as to defeat a recovery by plaintiff.
*387 “5. You are further instructed that if you shall find from the evidence that Flack and Sherin, or either of them, was a foreman of defendant having charge of the work being done in its combustion chambers and in control and supervision of deceased and other employes there at work, and as such foreman, had authority to direct them in their work to be done, then and in that event they, or either of them, so invested with such power was a vice principal of defendant, and the acts, orders and directions of either-of them so invested with such power, was the act of defendant, and their negligence or the negligence of either, if an/, was the negligence of the company.
“6. You are instructed that if you shall find from the evidence in the case, that the injury to, and death of Hunt was caused solely by the combined negligence of defendant and a fellow-servant of deceased, the plaintiff is entitled to recover, and though you should find that his death was caused solely by the negligence of a fellow-servant, still if you should further find that such servant was inexperienced and unfamiliar with the work of cleaning combustion chambers, and shall further find that defendant, its officers or agents knew, or by the exercise of reasonable care, could have known that such servant was incompetent to do the work of cleaning combustion chambers when it employed and placed him at such work, then you are justified in finding defendant guilty of negligence, provided you should further find that deceased did not know of such incompetency or could not have known of it by the exercise of reasonable care on his part.
“7. You are further instructed that it was the duty of defendant to make or cause to be made the ash-pit in which Hunt was burned reasonably safe for use before causing him to enter the same, if in fact the company or its agents did- direct him to go into same, and if you shall find that the duty to make or cause to be made, the ash-pit* reasonably safe to work in, was*388 placed by defendant upon John Sherin, one of defendant’s employees and that such employee failed or neglected to cool, or cause to be cooled, the ashes and make the pit reasonably safe for use, then the failure or neglect of John Sherin was the negligence of the company, and if you shall find that deceased had no knowledge or notice of the condition of said pit in time to avoid the injury he received, then and in such event the defendant was guilty of such negligence as to warrant a recovery by plaintiff.
1. We think the court properly denied the defendant’s peremptory instructions to find for it. The evidence shows that Hunt was a “green hand,” had never worked at the defendant’s ash-pits, knew nothing of their construction or the danger there was in entering one of them, and that he went into the pit in obedience to Sherin’s orders, presumably believing it safe, and either Sherin-or Flack turned on the water after he had entered the pit and the hose had been handed to him by Beaumont. It is admitted that Flack at the time was acting as superintendent of the mill and it is shown that Hunt and others employed in cleaning the boilers and ash-pits were placed by Flack under the control of Sherin whose duty it was to direct them when and how to work. They were, therefore, under his immediate control and supervision and were required to obey his orders in the performance of this particular work, hence, he represented the company and was not a fellow-servant of Hunt or of the other employees over whom he was given control. White v. Kehlor, 85 Mo. App. 559: Steube v. Iron & Foundry Company, 85 Mo. App. 640; Zellars v. Missouri Water & Light Company, 92 Mo. App. 107; Kelly v. Stewart, 93 Mo. App. 47; Haworth v. Railroad, 94 Mo. App. 215; Grattis v. Railway, 153 Mo. 380; Bradley v. Railway, 138 Mo. 293.
2. • The evidence of Burlbow, that he called Sherin’s attention to the fact that Hunt was a “green hand” and it was not safe for him to work in the ash-pit, was
3. Beaumont’s testimony, that when Sherin' handed him the hose and told him to hand it to Hunt, he thought he meant to hand it to him in the pit, was not prejudicial for the reason his evidence shows that Sherin knew that Hunt was in the pit and that he directed Beaumont to hand the hose to Hunt after he had entered the pit and what he thought about it is of no consequence, for the facts are as he thought, and there can be no other' meaning to the words and conduct of Sherin than that' Beaumont should hand the hose into the pit to Hunt.
4. It was not error to permit the witness, Long-rear, to testify as to the usual method of cleaning the ash-pit and to state that it was unsafe for Hunt to go into it in the condition it was then in, for it is shown beyond the shadow of a doubt that there was no other way to make it safe to clean out the ashes than by first turning in water and cooling them down, and it was not prejudicial but rather favorable to the defendant that this had been the uniform custom; nor was it prejudicial to permit the witness to state, what every man who-heard the evidence must have known, that it was not safe to go into the pits when they were full of red hot ashes and then turn water on them.
5. The instructions given for the plaintiff are criticised by the defendant. An examination of them has satisfied us that, while the wording in some of them is open to criticism, yet when they are all considered together they are substantially correct and properly declare the law of the case as made out by the plaintiff. No error is assigned for refusing some of the instruc
The evidence in the cause presents one of the most lamentable deaths caused by the most inexcusable negligence (to call it by no harsher name), it has' ever fallen to our lot to examine. The conduct of Sherin in ordering Hunt into the pit filled with three weeks accumulation of hot smouldering ashes and then turning water on them, can be accounted for on no other theory than that he was either ignorant of the work he was chosen to superintend or was reckless of the safety and lives of the men over whom he was given control. The defendant company, it seems from the evidence, gave orders that none of its employees should be required to work in a place of danger. It made a mistake in selecting Sherin as a boss to oversee men in the-cleaning of its boilers and ash-pits. His negligence or recklessness caused the death of Hunt, to whom no contributory negligence can be attributed under the evidence in the case, and the defendant should respond in damages occasioned by the negligence of its ill-selected boss.
The judgment is clearly and unmistakably for the right party and is affirmed.