136 Mo. App. 565 | Mo. Ct. App. | 1909
Plaintiff sued to recover damages for personal injuries alleged to have been caused by the negligence of defendant, his employer. The answer is a general denial. The cause was tried to a jury and is here on writ of error from judgment in favor of plaintiff.
Defendant is extensively engaged in the business of meat packing at St. Joseph. For two months or more prior to his injury plaintiff had been employed in the washroom of the oleomargarine department of defendant’s packing establishment. Within this room was a smaller box-like room called the steam room in which the iron trees used in hanging meat were cleaned. The trees Avere run into the steam room from the washroom on a track. The door of the steam room then was closed and steam was turned into the room and on to the trees through perforated pipes. Caustic soda was mixed Ayith the steam in a way to subject the trees to a bath of hot water strongly impregnated with caustic. The floor of the room was slightly concave to permit the drainage of the solution into a sewer inlet in the center of the floor. After the trees were treated to the bath fifteen or twenty minutes the workman in charge opened the door and by means of a hook, pulled them out into the washroom. Sponges were used to dry the floor. Plaintiff had been in charge of the steam room for two days before his injury. He did not know that caustic
Plaintiff expended $75 for medical treatment and at the time of the trial, which was more than a year after the injury, had not recovered. There is evidence that defendant did not inform plaintiff that caustic soda was being used in the steam room nor advise him of its dangerous properties. Defendant had actual knowledge of the defective condition of the place a long time before the injury.
We have stated the case in its aspect most favorable to the cause of action asserted. There is much evidence in the record to impugn the credibility of plaintiff and his witnesses, but we find ourselves compelled to hold that the evidence adduced by him was substantial. This being the case, the credibility of the witnesses and the weight to be given their testimony were issues for the jury to solve. That the evidence of plaintiff tends to
With one exception, all the assignments of error are found to be without merit. The exception relates to the second instruction given at the request of plaintiff, which is as follows:
“The court instructs the jury that if plaintiff was employed by defendant, plaintiff assumed as a part of his employment all the dangers necessarily incident to such employment, but that plaintiff did not assume any dangers arising from or caused by the carelessness and negligence of defendant.”
The version of the injury given in the evidence of plaintiff is contradicted in all essential particulars by the evidence of defendant which tends strongly to show that if plaintiff were injured by coming into contact with the. caustic, it was in a way to bespeak either his own negligence or one of the natural risks of the employment as the proximate cause. If the definition in the instruction of the risks assumed by plaintiff enlarged the scope of defendant’s duty to plaintiff, its
The declaration in the instruction to the effect that plaintiff assumed only those dangers that were necessarily incident to the employment and did not assume those caused by defendant’s negligence was equivalent to the assertion that dangers which might ordinarily and naturally but not necessarily belong to the service were dangers not assumed by the servant and, consequently, were among those which the care of the master should take into account and obviate. Necessary means inevitable — not to be avoided even by the exercise of the highest degree of care, and the corollary of the proposition of the instruction that only unavoidable risks are assumed by the servant, is that the master must exercise the
Por the error in giving this instruction^ the judgment is reversed and the cause remanded.