282 S.W. 141 | Mo. Ct. App. | 1926
Lead Opinion
The cause was tried to a jury, there was a verdict and judgment for plaintiff for the sum of four thousand dollars, and defendant appeals.
The defendant manufactured fire brick at its plant, and in the process of making fire brick, gas was used as fuel with which the bricks were burned. This gas, which in appearance is a yellow colored smoke, was made at the plant from the burning of coal and is known as producer gas, and contains from twenty-one to thirty-seven per cent carbon monoxide, which is a poisonous substance, and when inhaled by a human being may result in death by suffocation, and if death does not ensue may nevertheless have a permanent deleterious effect upon the system.
The gas plant consists of three units with two producers in each unit connected by goosenecks, dust legs, and conduits. Each producer is a steel cylinder lined with fire brick with the lower half tapering to a cone shape and open at the bottom. The diameter of the upper half is about eight feet and the lower half smaller due to its cone shape. The height over all is about ten feet. Underneath and separated from the cone-shaped cylinder a distance of twelve inches is an ash pan resembling a bowl about eight feet in diameter and about two feet deep. A hollow pipe passes through the center of this ash pan and runs perpendicular in the cylinder shell to a height of about three feet. On top of this hollow pipe is placed a blast hood or twier resembling somewhat the top of a mushroom. Through the hollow pipe steam-Iaden air is blown and when striking the under side of the blast hood is disseminated evenly throughout the coal bed and provides the draft for the fire. The top of the producer is covered by an iron top and placed thereon is an automatic coal feeding device which distributes the coal from a bunker above through said feeding *600 device to the fire below. There is also in the top of the producer an opening through which a poker automatically operates and stirs the fire below. This poker hole is provided with a door which is kept closed when operating and opened at times when the producer is shut down. The cylinder part of the producer is supported by or hung to a circular track upon which the producer revolves when in operation. The detached ash pan or bowl is also made to revolve by other mechanical device for the purpose of relieving the fire of ashes while in operation. On top of the producer and connected with it is a large hollow pipe in the form of an elbow or gooseneck which runs to and is connected at its other end with a large round upright steel tank termed a dust leg about fifteen feet in height and about six feet in diameter. In the gooseneck is a door which is closed down when operating and opened when not. In the tank mentioned and a few feet above where the gooseneck enters it is a large flat-topped valve weighing approximately a ton, with a stem in the middle of it extending up to and through the top of the center of this tank. The diameter of the valve is slightly less than the diameter of the tank or dust leg. When the producer is in operation and making gas this valve is raised from its seat to the top of the tank and when the producer is shut down the valve is lowered and rests in its seat. The valve is raised and lowered by means of a chain block or hoist rigged or fastened to the rafters in the building and also attached to the top of the stem. The gas made in the producer passes through the gooseneck into this tank or dust leg and then to another similar tank or dust leg which is called the common dust leg, by reason of the fact that the producers are installed in pairs and are identical in equipment and the gas from each of the dust legs attached immediately to each of the producers runs into this common dust leg. From this common dust leg the gas runs into a smaller and connected cylindrical conduit called the downtake and from this downtake into and through a tunnel and there *601 is distributed to the several and various kilns where the gas is lighted and used in the burning of brick.
The producer in question here, and the other producers in the plant, were periodically shut down, and when a producer was shut down the valve in the dust leg would be lowered and seated, the door in the gooseneck opened, a door at the extreme bottom of the dust leg opened, and the fire dragged or cleaned out of the producer. When the valve was lowered or seated the upper half of the dust leg would remain filled with gas, whereas the lower half of the dust leg would in a short time be emptied of its gas by the circulation of air. After the producer was shut down, the valve lowered, the dust leg and gooseneck doors opened, and the fire dragged and ashes removed from the pan so as to leave the twelve inches of open space between the bottom of the producer and the ash pan, the producer would begin to cool and after a day to a day and a half's time it would be cold so that defendant's employees could go inside of it for any required purpose.
A back pressure occurs at times when the producers are operating by reason of soot accumulating on the walls of the tunnel or the conduit to the brick kilns and likewise when one producer is shut down and its twin operating. The function or purpose of the valve in the dust leg is to control the flow of the gas being manufactured in the live producer when one producer is dead and the other operating, so that the gas ultimately flows into and through the tunnel to the brick kilns and accordingly is prevented from flowing into the dead or down producer and through any of its openings out into the building.
The evidence for the plaintiff tended to show that when the producer in which the plaintiff received the injuries for which he sues was installed, the beveled edge on the valve of the dust leg had a small rough place on it which might prevent it from seating properly, and that this was called to the attention of the assistant superintendent of the plant at the time; that the producer *602 was shut down two or three weeks before the plaintiff was injured; that the blast hood had been burned so that it was necessary to replace it with a new one; that the plaintiff was a painter by trade; that he had no knowledge concerning the details of the construction or operation of the machinery and equipment employed in the manufacture of the gas, or as to the manner in which the gas was confined, controlled, or conveyed in and through the dust legs, conduits, and tunnels; that he was in the employ of the defendant as a machinist-helper; that he was not a machinist and knew nothing about the operation of the gas producers, his work being simply that of repairing broken pieces of machinery; that though he helped to install one of the gas producers, he did not help to install the dust legs and knew nothing about them; that on the day he was injured he and a fellow workman by the name of Dan Taylor were directed by the master mechanic to enter the producer and remove therefrom the blast hood; that in pursuance of such order he and Taylor removed the automatic poker and entered the producer by means of a ladder through the poker hole; that he and Taylor worked there about an hour and a half when the gas suddenly came in on them, and he was overcome by the gas before he was able to get out of the producer; that he was taken out of the producer by the assistance of fellow workmen; that he remained in an unconscious condition for about a half hour; that though persons could and sometimes did enter and leave the producer at the bottom, the customary way to enter and leave the producer was through the poker hole.
There was evidence for the defendant tending to show that the valve and the dust leg were properly and skillfully installed, that when the valve was seated it would prevent the gas from escaping from the dust leg into the producer, and that at the time the plaintiff was injured the valve of the dust leg had been lowered. *603
The employees who lowered the valve were not produced as witnesses, nor were their names disclosed at the trial.
The defendant assigns error upon the refusal of its demurrer to the evidence. This assignment is predicated on the grounds (1) that plaintiff made no proof of the specific negligence alleged in the petition, to-wit, a failure to warn, (2) that no actionable negligence was proved against the defendant, (3) that plaintiff assumed the risk of inhaling gas by reason of the work he was performing, and (4) that plaintiff was guilty of contributory negligence barring a recovery in not promptly quitting the producer when the gas entered. This assignment must be ruled against the defendant. The petition charges general negligence. The evidence makes out a clear case of presumptive or inferential negligence under the res ipsa loquitur rule. There is no merit in the suggestion that the plaintiff assumed the risk or was guilty of contributory negligence as a matter of law. [Myers v. City of Independence, ___ Mo. ___, 189 S.W. 816; Ash v. Woodward Tiernan Printing Co., ___ Mo., ___, 199 S.W. 994; Ferguson v. Fulton Iron Works, ___ Mo. App. ___, 259 S.W. 811; Daugherty v. Neosho Granby Mining Co., ___ Mo. App. ___, 207 S.W. 253; Mayne v. Kansas City Rys. Co.,
Defendant insists that the court erred in refusing to discharge the jury when it was made evident to the jury that an insurance company would indemnify defendant for any verdict rendered against it. A witness produced on behalf of the defendant, who was an assistant *604
to a physician in Vandalia, testified concerning a visit of plaintiff and his fellow workman Taylor to the physician's office on the day that plaintiff was injured, for treatment of his injuries, and on cross-examination of the witness by plaintiff's counsel, the following occurred: "Q. And you put their names down? A. I did. Q. On your day book, you did that? A. I did. Q. You made no charge, did you? A. I did. Q. You made a charge? A. I made a charge. Q. How much did you charge them for the information that you had given them? A. I made a charge for the Maryland Casualty Company. Q. Oh, you charged them something for the Maryland Casualty Company? A. Because the Maryland Casualty Company —" Thereupon defendant's counsel objected, and the objection was sustained. Afterwards defendant's counsel moved the court to discharge the jury because the witness had named the Maryland Casualty Company as one against whom she made a charge for the visit of the plaintiff and Taylor. Counsel also stated at the time that in point of fact the Maryland Casualty Company carried indemnity insurance for the defendant covering its liability in this case. The court overruled the motion to discharge the jury. There was no error in this ruling of the court. The information that a charge had been made in the physician's book for the visit of plaintiff and Taylor against the insurance company evidently came into the case by mere accident and without any design on the part of plaintiff's counsel. The statement conveying this information was made by the witness in an answer that was not responsive to the question propounded. The question did not call for the information which the witness volunteered to give. The objection made by counsel was promptly sustained by the court. Besides, the witness had given testimony calculated to minimize the plaintiff's injury and reduce his damages, and we see no reason why the plaintiff was not entitled to have the jury know that the witness' employer was in the service and pay of an insurance company vitally interested in reducing *605
the plaintiff's damages, or why the defendant was entitled to keep this information from the jury and thus permit the insurance company to strike the plaintiff from ambush. [Snyder v. Wagner Electric Mfg. Co.,
George Marsh, produced by plaintiff, testified that a few hours after plaintiff and Taylor were gassed in the producer, Kretschmar, who was master mechanic, or maintenance man, in charge of and supervising the work of repairing the blast hood in the producer, ordered the witness and another workman to go into the producer and complete the repairs which had been commenced by plaintiff and Taylor; that when the witness and the other workman went into the producer for the purpose of completing the repairs gas was oozing from the dust leg through the gooseneck into the producer; that they placed an electric fan in the producer to keep the gas out while they worked; that the assistant superintendent of the plant brought the fan to them. The testimony in relation to the placing of the electric fan in the producer to keep the gas out while the workmen were completing the repairs on the blast hood was objected to, and its admission is assigned as error here. It is urged that the court in the admission of this testimony violated the rule that it is not competent to show that defendant made repairs or remedied defects or conditions subsequent to the injury in suit. We think the rule invoked ought not to apply here. The defense made in this case by the defendant in the court below was that no gas in fact entered the producer from the dust leg while the plaintiff was engaged in work there, that the plaintiff was not in fact gassed, and that gas did not and could not escape from the dust leg. In view of this, it was competent to show, and we do not understand that defendant contends it was not, that when the workmen went into the producer to complete the repairs on the blast hood a few hours after the plaintiff was gassed, there was gas coming into the producer through the gooseneck from the dust leg. In order that plaintiff *606 might get the testimony concerning this fact before the jury in a shape to be of any value to him, it was necessary that the jury should know that a fan was placed in the producer to keep the gas out so that they might understand why the workmen could remain in the producer and perform their work without any serious consequences to themselves.
The defendant assigns error upon the ruling of the court in permitting plaintiff's witness Harvey to testify that when there was no gas in the producer there was no way that gas could get into the gooseneck except from the dust leg; that when the producer was closed down there was no way for gas to get into the producer except by back pressure through the dust leg and gooseneck; that there was no other connection by which the gas could get into the producer. It is urged that this testimony was objectionable because it was a conclusion of the witness and invaded the province of the jury. We are unable to see what harm could have resulted from permitting the witness to thus testify. All the evidence concedes that if in fact gas came into the producer while the plaintiff was at work there, it was forced by back pressure into the producer through the gooseneck and dust leg.
The assignments of error made by defendant in relation to plaintiff's instructions, predicated upon the erroneous assumption that the doctrine of res ipsa loquitur may not be invoked in this case, are necessarily ruled against the defendant from what has already been said.
There is no merit in the suggestion that the plaintiff was not entitled to invoke the res ipsa loquitur rule, because he undertook to show some specific negligence on the part of the defendant. [Price v. Metropolitan Street Ry. Co.,
Likewise, there is no merit in the complaint that plaintiff's instructions on the measure of damages permitted a recovery for future pain. There was ample evidence upon which to predicate this feature of the instruction.
The defendant assigns error upon the ruling of the court in permitting plaintiff's counsel to comment in his argument to the jury upon the failure of the defendant to produce Kretschmar as a witness. There was no error in this ruling. The failure of the defendant to produce Kretschmar as a witness was a proper matter for comment in argument. Kretschmar was the defendant's master mechanic or maintenance man at the time the plaintiff was injured. It was Kretschmar's duty to inspect and keep in repair and proper condition the machinery and equipment of defendant's plant. The work that plaintiff was performing at the time he was injured was under Kretschmar's supervision. Kretschmar must have been in possession of salient facts material to the issues on trial. He knew or ought to have known the condition of the valve and dust leg from which the gas escaped, at the time of plaintiff's injury. He doubtless also knew whether or not gas in fact escaped from the dust leg and entered the producer while the plaintiff was at work there. His whereabouts was known to the defendant at the time of the trial. Though his relation to the defendant as an employee had been severed at the time of the trial, nevertheless he *608
would reasonably be expected to be friendly to the defendant and disposed to favor it in his testimony. He was therefore peculiarly available to the defendant. It was the defendant's duty to produce him as a witness or suffer without complaint the unfavorable inference to be legitimately drawn from its failure to do so. The fact that the plaintiff took his deposition did not excuse the failure of the defendant to produce him as a witness. The deposition was never signed by the witness, nor was his signature waived. What the deposition contained does not appear. The defendant did not offer to read it to the jury. There was no obligation on the plaintiff to read to the jury the deposition of an unfriendly witness and avouch his credibility. Notwithstanding the deposition, the witness was peculiarly available to the defendant, and defendant was not excused thereby from the obligation to produce the witness. [Brigham City Fruit Growers' Ass'n v. Zollmann Produce Co., ___ Mo. ___, 220 S.W. 911, l.c. 918; McCord v. Schaff, ___ Mo. ___, 216 S.W. 320; Fuerstenberg v. Kram, ___ Mo. App. ___, 249 S.W. 143; Reyburn v. Missouri Pacific R. Co.,
Other complaints are made in relation to the argument of plaintiff's counsel to the jury and the rulings of the court thereon. We have carefully examined the record to which these complaints relate, and we find no substantial merit in them.
The defendant insists that the verdict is excessive. The evidence shows that at the time of the trial plaintiff was suffering from rapid heart action; that when he was at rest the heart action was at the rate of 104 beats per minute, and that after exertion the rate was 140; that the heart was flabby and slightly enlarged; that this condition of the heart is probably permanent; that there were lesions or striae in the lungs and the expansion of the right lung was curtailed; that plaintiff had suffered and continued to suffer great pain from his injuries; that he was unable to perform hard labor; that *609 his earning capacity was greatly reduced; that he was in need of medical attention; that he was subject to fainting or sinking spells; that on account of these attacks he several times fell from ladders while engaged in his work as a painter; that he was twenty-five years old at the time of his injury. The testimony was conflicting as to whether the condition of plaintiff's heart and lungs resulted from his injuries or from other causes, but the conflicting evidence was for the jury. We see no cause to disturb the verdict for excessiveness.
The Commissioner recommends that the judgment of the circuit court be affirmed.
Addendum
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. Daues, P.J., and Becker Nipper, JJ., concur.
