132 Mo. App. 380 | Mo. Ct. App. | 1908
The plaintiff seeks to recover damages for injuries received as the result of the alleged negligence of the defendant. The defendant is a corporation which supplies illuminating and fuel gas to the inhabitants of the city of St. Joseph, Missouri. On the 17th day of October, 1906, plaintiff was in the employ of defendant as a common laborer, and engaged with other employees of defendant in putting in gaspipes to form a connection between the gas main of defendant and a residence located at number 1305 Felix street. Connection was begun at the gas main in the street, and carried forward by sections towards the residence. In the progress of the work it became necessary to dig a trench across the sidewalk space. In this space a stopcock had been placed in the pipe being laid to prevent the escape of gas from the pipe, but it was shown that this stopcock was left open and the trench filled up, and that the extension was continued by laying of sections until the building was reached and it was while plaintiff and a Mr. Chapman were at work on the inside
• A Mr. Enright was the superintendent of the defendant and Chapman was its foreman and had supervision of the work in question in the absence of En-right. Mr. Enright testified that it was the usual custom in all such cases to attach a stopbox to the stopcock before a trench Avas filled in, so that the Avorkman could at all times control the flow of gas and prevent it from escaping, but he did not remember giving an order to that effect in the instance under consideration.
The contention of defendant is that as defendant had provided the means to prevent the flow of gas, it could do no more unless it stood over the servants and made them use the means. Had the means been provided the contention of defendant Avould be tenable, but the stopcock provided for the purpose did not prove efficient for the reason that it could not be used Avithout a stopbox properly equipped. If it was a mere matter in the detail of the work to put on the stopbox then perhaps defendant Avould not be liable, without the work was done under the supervision of some one in
The plaintiff was injured not as the result of Chapman’s negligence as a workman but by reason of his negligence as foreman of defendant in the general supervision of the work. But it is claimed that Chapman was not representing the master in the detail of the work; that the workmen all knew the method they were pursuing was against the master’s rule and attended with some hazard; and that Chapman nor any other workman could neglect to usé the stopcock. The weakness of the proposition is that it ignores Chapman as foreman, as the alter ego, and makes him a workman for all purposes. If the foreman in charge of the work proceeded, not according to the ordinary rule of the superintendent, but in a different manner the workman had the right to assume that he was acting at the time in accord with his superior officer, and it was not for them to proceed in the manner they might consider
The defendant asked the court to instruct the jury, “that if plaintiff knew the gas was not turned off at the stopcock and that it was escaping while Chapman was making the pipe connection, and with such knowledge continued to work under such conditions he assumed the risk of an injury from an explosiqn of the escaping gas, and cannot recover.” The court refused the instruction and rightfully. It has been so often decided by the courts of the State that the servant does
Tbe defendant finds fault with tbe plaintiff’s fifth instruction. It reads: “Tbe court instructs tbe jury that they are not bound to accept as true tbe opinion of expert witnesses, but tbe jury may give tbe opinion of expert witnesses sucb weight as tbe jury may under all tbe evidence in tbe case consider them entitled to, or tbe jury may altogether disregard sucb opinions, if tbe jury from all tbe facts believe sucb opinions to be unreasonable.” Tbe criticism is just in that it amounts to a commentary on tbe evidence, but as tbe instruction bas been sanctioned by tbe Supreme Court there was no error in giving it to tbe jury. [Hoyberg v. Henske, 153 Mo. 64; Markey v. Railroad, 185 Mo. 348.]
Tbe explosion was tbe result of tbe grossest negligence on tbe part of tbe defendant, and tbe injuries be received were severe and permanent. One side of tbe building Avas blown down and plaintiff was thrown out