*1 209 APPEAL REPORTS, MISSOURI Robnett G-riesedieck Bros. Brew. Co. damages compensatory only. jury of
assessment If the obeyed they followed and could instructions, punitive damages finding have assessed without the facts required to be found the first for in no instruction, may authority assessing other instruction be found for damages prop- may this character. think that We we erly proceed upon presumption jurors fol- that the obeyed lowed and the instructions, sworn as was their duty. utilizing presumption, And here we take establishing the verdict before us as the fact that the jury pay did find that intended 'to his fare passenger upon thus become the car. give plaintiff’s In this if it in- view, was error No. 2 struction and to refuse instructions defendant’s it “A” and since thus “B,” was harmless error, appears jury appellant’s thereby were not misled prejudice. judg- areWe commanded not to reverse any ment court unless “believe error we plain- appellant committed court such affecting materially in error, tiff ac- merits (Sec. disregard 1909) tion,” Rev. and to 2082, Stat. affecting, rights error not “the substantial party.” [Sec. 1909.] adverse Rev. Stat. 1850, Under we com- circumstances, do not the errors believe plained they of, if material- errors are such be, as to ly affect the of the action or substantial merits rights appellant. judgment accordingly All concur. is affirmed. Respondent, GRIESE H. ROBNETT,
CHARLES COMPANY, DIECK BREWERY BROTHERS Appellant. Corporation, Appeals. Opinion Filed March 1922.
St. Louis Court of Contributory Negligence: as a De- NEGLIGENCE When Available Though contributory not Fleaded. fense The defense defense, though open pleaded where under to defendant Co. Bros. Brew. v. Griesedieck the evidence adduced injury, ap- respect only to the cause of the pears evidence with contributory negligence, guilty as a *2 law, barring recovery. a matter of Degree Duty Re- 2. of Care MASTER AND SERVANT: of Master: quired obligation master of Servant. is no There the ex- to take more care of the servant than he pected himself, ac- an cannot maintain to do for and the servant injuries direct, negligence producing and tion the for if was casualty. efficient cause of the Negligence: Leaving Hole: -: Servant Cover Off of Hot Water damages personal Contributory Negligence. for In for an action injuries alleged by plaintiff slipping on a to have been caused whereby falling greasy his left floor and into a water hot hole scalded, leg badly the evidence that material shows injury plaintiff’s produced prior to caused condition which in he re- of or omission that the time the accident own act it, covering replace did not the iron lid said moved place do in in his work that thus created unsafe there which injury danger plaintiff by of of the hot no reason water on, dangerous by he fail- cover was made hole when it replace cover, ing guilty held «was of con- law, barring recovery. tributory negligence, as a matter of n -:-:-: to Handle Cover: Proxi- Want Means Not leaving Injury. servant’s mate Cause of Where the had removed for the off hole which he the cover water hot getting purpose off exhaust was the to shut steam valve injury, proximate he of his recover cause cannot direct arrangement by provide theory failed some master handled, easily hole could the lid over the have handle, appears being was hard and it no evidence that difficulty raising placing had no the servant that against it, easily replaced have and there the wall could n alleged between failure and casual connection shown injury. City Court of St. from the Circuit Louis.— Appeal Landwehr, Judge. Hon. Frank Reversed. 209 MISSOURI APPEAL REPORTS,
Robnett v. Griesedieck Bros. Brew. Co. Hayden appellant.
M.
U.
(1) Proof of the mere
fact
floor
vicinity
opening
respondent’s
into which
foot
slipped
slippery,
is not alone sufficient to entitle
respondent
upon
to recover. The further burden rested
respondent
appellant
to establish that
either
knew,
exercise
care,
known,
negligence,
said condition of said
and that
floor,
such
if
any,
proximate
injury. Stagg
was the
cause of his
v.
Co.,
Coffee
Co., 178
99;
v. Meinrath,
Minnier
167 Mo. Glover
Railroad,
v.
443;
Lounge
480;
222 Mo.
Co.,
Coin v.
O’Dowd
392;
133 Mo.
App.
Mo.
v.
Co.,
660;
Railroad,
Railroad
166
Smart
v.
ordinary
(4)
App.
and custom-
Where
164 Mo.
regular perform-
employee
ary
include
duties
an
appliances,
of certain
of certain work and
use
ance
right
that the
to assume
servant will
master has
duty
performance
ordinary
in the
care
such
exercise
appliances. The master
like-
the use of such
and in
upon
exercising
rely
the servant’s
care
wise
safety
performing
the intermediate tasks in-
Pulley
employment.
v.
the duties of
cidental to
Oil
Slagel
App. 172;
Co.,
v. Lumber'
138 Mo.
Mo.
Co., 136
Ápp.
v. Elevator
189 Mo.
Co.,
552;
Blundell
Omans
432;
App.
Packing
Forbes v.
557;
Dunnavant,
151 Mo.
Co.,
v.
Modlagl
Foundry
v.
248 Mo.
193;
Co.,
587,
Mo.
198
App.
Railway
Pippin
181 Mo.
Co.,
373,
v.
Yannest v.
App.
Labatt
Mo.
on Master
Co.,
360,
Construction
(2 Ed.),
p.
Miller
3919;
sec. 1361,
v. Railroad,
& Servant
App.
87;
Railroad,
257 Mo.
Mo.
Williams
(5) Allegations
Wagner,
Knorpp
as allegations negligence, it is reversible error to submit giving jury without an case to the instruction cover- submitting theory ing case for the recovery. upon relies for a which he Eversole Rail- v. Mo. Powell 523; 249 v. Railroad Co., Co., road 225 Mo. misleading (7) No. 420. ing, Instruction 6 was and confus- in view of circumstances this case, and in plea contributory of the fact that there view interposed by appellant, giving of this reversible instructtion was error. See authorities cited (8) Points 5 and 6. The verdict under is excessive. respondent. PirTcey Earl M.
(1)
is not error and the failure of
Nondirection
request
general
instruction is
Co.,
error.
v. Star-Chronicle Pub.
471.
Alexander
S. W.
(3)
does
instruct on an
issue
Where
right to receive a
he does not waive his
verdict on
case,
theory.
(3)
Bunn,
Sweet v.
Robnett damages for C. a to recover BRUERE, This is suit personal injuries, by plaintiff while in the em- received ploy plaintiff charges to defendant, and which negligence. defendant’s judgment verdict and
Te trial below resulted a for the on and the case here defendant’s appeal. allegations petition, respect
The with to the injury negligence charged, in; cause of the and the are day That on the 16th follows; June, substance plaintiff brewery plant service at its was defendant’s discharge engineer, as an assistant of his duties attempting machinery, was certain to do some work necessary was that certain steam and to do this it be turn- necessary ed that turn off it to such steam was off; for up part consisting floor, raise of a or lid cover over hole or conduit which there was a that at the off; wheel to turn the same time space prior injured, long for of time next thereto, it was by safe do work said reason of fact that hole had water in said hot it, slippery; hole floor about said that it necessary cover the hole in to take the off order to to turn steam off and said wheel that reach the off do work; had to be turned said steam by no handle or other said cover was hot conveniently safely which it or could moved whilie guard prevent persons from hot, slipping falling into when said or hole cover off. said petition charges further the defendant by care exercise of knew, or things known, above-mentioned matters and in time ordinary care, exercise of have rendered said water and said floor clean hole free of said hot and not provided arrangement slippery, and to have some easily cover could have handled whether which said provided guard cold, to have around hot or some said prevent persons slipping falling from into it APPEAL 209 MISSOURI REPORTS, v. Griesediectt Brew. Bros. Co. *6 by provided when a means said was off and cover easily turned off or on said steam could have been without removing said said cover from hole before was injuries plaintiff, injured, to thus the but and averted any negligently things, to of said defendant failed do but plant in the condition maintained said above mentioned, protection plaintiff. all without kind petition charges day The that on said 16th further by June, the of defendant reason of 1918, near hole above was said mentioned, while and discharge engaged duty was the the of his said employment by and reason of the fact that said floor was slippery clean, was and said hot water had necessary it, and that it remove said cover to- was turn off the that said was hot and steam and cover part arrangement by there other no handle or was conveniently which said cover could handled when guard prevent person hot and that from slipping plain- into said hole when said cover off, was slipped whereby leg tiff fell and into hole, said left badly etc. burned, scalded put by general
The cause was. at issue denial. The facts case, essential how the accident dispute. eye-witnesses are There no occured, were testimony plaintiff gives the accident. The only account of the occurence. : by disclosed facts the evidence, introduced on plaintiff, At are: time the accident employed engineer as an assistant at defend- brewery, employed eight ant’s been so about prior injury. working to his His months hours at plant 3:00 from o’clock in the were afternoon until 11:00 night. happened o’clock The accident at between 8:30 Sunday evening, o’clock 9:00 June 16th, 1918. Adjoining boiler room was the brewhouse, and in the engine brewhouse was the involved in this case. The en- gine from stood three feet the south about wall of the long way. set east and west the and was room, Under- y. Rolmett Griesedieck Bros. Brew. Co. engine
neath floor between side of the south containing the south wall, there a hole or conduit hot arising water, from exhaust steam. In hole there were pipes certain exhaust and a valve which exhaust steam could be turned on or shut off. The hole was cov- weighed an iron ered flush in the floor. This lid set pounds fifty five 18 x and its dimension was inches. 28% day governor On the accident valve on said engine leaking necessary became performance pack duties, in the of his the valve. The engine, was located on south valve side of the five to immediately floor, six edge from the feet above the east opening or east end of the in the In floor. order to *7 governor pack necesssary it the was valve to shut off the engine steam from the and live also the exhaust steam. plaintiff’s above before testimony., us, the facts With pertaining readily to the can accident, be more under- stood.
Plaintiff hole testified that the tbe floor was about twenty-seven eighteen inches and half wide, a inches twenty-seven long deep; during inches that and all the day working injured, there, was on he the he time was just up a few he minutes before hurt, was the iron entirely up; over said and hole covered it lid was that pack proceeded governor he the before valve him- he doing while so lid; raised the that self he looked to see any; in the there was but not hole, if water the did see placed got the hole he wall off that after he stooped then and south and down turned a the just the hole, located beneath and wheel, floor, the shutting the valve was fastened to thus off stem, which that the valve was hot that steam; exhaust so he the had rag taking place of it; his hand hold that after straightened shutting up the steam off exhaust he placed on had which he chair, east walked packing governor valve; materials for the that tools and governor, getting west these he walked faced after standing stopped, foot about left with his north and 209 M. A—25 REPORTS, APPEAL 209 MISSOURI Bros. Brew. Co. Griesedieck edge or east inches east east end or three
two gov- he reached for so stood that as he hole; slipped into was the hole, his foot ernor when leg from his partially water, hot his left filled with burnt. knee was to his foot testified that when took
Plaintiff further he floor, the hole he looked at the between the off cover any grease engine did not the south but see wall, thought right;” “it was safe all that he there, that place and at the where he hole, floor about the fell judged greasy that this to so he because he day slipped; in- on the he hurt, after he was light put jured, looked at the floor with he spot eight greasy floor and about on the felt a hands eight located or ten inches east of ten inches wide edge of the hole. He further testified duty man in clean that he floor; saw not his Saturdays, on this how often the brewhouse do work say, he them clean and that noticed he could Saturday. preceding Plaintiff further floor engines running- one of whenever testified that in the and that and water accumulated steam cooking steam hot, ; became caused the exhaust water day running enignes acci- were running constantly prior and had been months dent been in the conduit ever and that the water had thereto, *8 employed plant. at he had the since plaintiff, for the Wack, witness testified Charles in saw after the accident he looked the hole and that just grease in level it, about the of valve, water and smeary not He it was clean around it. and that up brewery men that not clean testified did further the day preceding the accident. Koenig, for the that
Arthur testified previous accident, of to the he was December, month plant working he then that saw water at defendant’s grease in that at that time the over he hole and hinge up no to raise it the hole had handle with. TEEM, MAECH Bros. Brew. Co. v. Griesedieck Horstmann on Eobert testified Emil Edstrom and May, testified that of the behalf years plaintiff’s prior injury they boil- to and two saw ing informed the defendant com- water put thereafter pany that of that fact and drain was not water. did drain the that in-but was all evidence introduced to how This occurred. accident Wagner, testified Jr., foreman, defendant’s
Ed charge personally up of the men who he cleaned preceding-the Saturday the brewhouse floor of acci- scraped that the floor was with cleaned dent always further testified lime. He slack engine. around of a foot or so the base oil about of all the evidence the the close defendant of- At to the evidence demurrer court re- fered a fused. that the trial contends court
Defendant erred sustaining its are con- demurrer. We convinced that this is correct. tention negligence pleaded contributory is as a
While yet open this case, in this defense to the de- is defense part the evidence under adduced on because, fendant, only is the and which evidence re- with injury, appears clearly spect the cause contributory negligence, guilty as -a recovery. barring law, matter of requires use all law the servant to The care injury that is exercise that himself, to avoid prudent person degree reasonably which a care obliga- injured. being There no in order avoid use master to take more care tion expected do than he servant cannot maintain the action servant himself. if producing and efficient direct, cause casualty. plaintiff’s in- condition which The material caused produced prior jury time of the accident *9 388 209 APPEAL MISSOURI REPORTS, Qriesedieek
Robnett v. Bros. Brew. Co. place, Ms own act or omission. He created the unsafe complains. in which to do his work, of which he There danger plaintiff injury by reason of the plain- hot water in when cover on, dangerous by failing r.eplace tiff made it the cover. proximate injury The direct and cause of the was the plaintiff negligence leaving the hole uncovered casualty happened. and absent which the not would have Packing In the case Musick Dold 58 Mo. Co., v. App. Supreme says: l. c. Court of 335, this State slipped “It is true that if the not his limb plunged would not have been into the hot water tank. equally though slipped, It is true he the disaster would not have overtaken him had not the tank been un slipping covered. The not the in sole cause jury. except latter have occurred for the presence and coexistence both causes. . . . Since slipping the injury sole cause of the slip
it matters little whether the was occasioned negligence of a fellow servant or not. It was not as proximate has been stated the direct and in- cause of the jury. leaving This was the of defendant in ’’ unguarded any way. the tank uncovered and in applicable quotation
The above is most here question decides the before us. [See, v. also, Sissel Railroad, 214 Mo. 113 526, W. Tannehill 1104; S. Railroad, 279 Mo. 165, 818; S. W. Oates v. Metro politan Ry. St. Co., 168 Mo. l. c. 68 S. 548, W. Holt- 906; Kamp Railroad, W. and cases S. cited.]
Respondent, urges however, the defendant provide arrangement failed to some easily over the hole could have been handled. There is no evidence in the record that the lid was hard to handle. appears difficulty raising It that the had no placing easily the wall. He could as replaced it. Moreover, evidence discloses that alleged there was casual connection between this no injury. injured failure and the Plaintiff was not while
Flack v. Ball. placed it handling He removed the lid. closed before and that incident was the wall removing provided re- injury. for The manner injury. nothing placing to do with the lid had the evidence was hold that to are constrained We perempt- jury. The the case to insufficient submit given. ory have been instruction should judgment reversed; be that the should It follows so recommends. the commissioner opinion Brtjere, C., PER CURIAM:—The judgment adopted opinion the court. The accordingly city Louis is the circniit court of the St. Becker, con- JJ., Danes, reversed. P. Allen, J., cur. Respondent, BALL, C. PHILIP D. FLACH,
MARIE
Appellant. Opinion April 4, Appeals. Filed Louis Court of
St. PRACTICE: Demurrer to Evidence: Viewed Most Favorable 1. TRIAL passing upon the evi- demurrer to Plaintiff. In defendant’s light dence, in a most favorable the evidence must viewed be admitting every inference that as true fact therefrom. adduced Running Contributory Negligence: by Automobiles 2. NEGLIGENCE: Negligent Stopped as Mat- Evidence: Pedestrian Street Car: alleged injuries damages personal ter of In action for Law. an automobile, being by by defendant’s struck caused alighting to the effect that evidence where intending car, an eastbound board northbound street from a standing car, intersecting car other a street saw southbound to cross in front of northbound when track and started crossing pedestrians, used she was much cars and southbound automobile, automobile in violation of an struck high speed past rate of said stand- city at driven ordinance car, distance she knew she had ing and that southbound