Reickert v. Hammond Packing Company
| Decision Date | 19 April 1909 |
| Citation | 118 S.W. 525,136 Mo.App. 565 |
| Parties | RALPH REICKERT, Respondent, v. HAMMOND PACKING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Vinton Pike for plaintiff in error.
(1) The plaintiff should have been nonsuited. His case is utterly without merit, and it is so apparently a manufactured case that it cannot excite favorable consideration. Plaintiff committed perjury upon the first and second trial. Plaintiff's perjury forfeits his verdict. R. S. 1899 sec. 800. (2) The damages assessed were so excessive as to show the jury were actuated by bias and prejudice and disregarded the instructions of the court, because the plaintiff admits his foot was not so severely injured as to attract attention, or to prevent his wearing after the alleged injury, the same shoe he wore before, and to work for a month in the same department. This is emphasized by the fact that his verdict for $ 300 on the former trial was admitted to be excessive. Nothing has occurred since the former trial to enhance the damages. There is no pretense of permanent injury. The jury evidently forgot their duty to themselves, to the public, and to the plaintiff in their uncontrollable disposition to "go for" a beef packer. Stoetzele v. Swearingen, 90 Mo.App. 588; Haynes v. Town of Trenton, 108 Mo. 134; Logan v Small, 43 Mo. 254; Empey v. Cable Co., 45 Mo.App. 422; Zurfluh v. Railroad, 46 Mo.App. 636. (3) Plaintiff's second instruction is erroneous, limiting plaintiff's assumption to "necessary risks." If the court should hold a risk to be necessarily incident to the service, there must be a nonsuit. But the jury may defeat the servant, if they believe the risk was ordinarily incident. The jury may have said this risk was ordinary common, customary, usual; but it was not necessary, unavoidable, inevitable, impossible to be otherwise. It was not necessary that he should scald his foot; but ordinarily he would, if he stepped in the solution barefooted, or with leaky shoes. Henry v. Railway, 109 Mo. 493; Musick v. Dold, 58 Mo.App. 322; Lucey v. Oil Co., 129 Mo. 32; Thompson v. Railway, 86 Mo.App. 141; Adam v. McCormick, 95 Mo.App. 111; Minnier v. Railway, 167 Mo. 113.
Neville & Grier and Ell Holland for defendant in error.
(1) Respondent should not have been nonsuited. This court cannot find that respondent committed perjury when it has not all the evidence in the case before it. Meriwether v. Howe, 48 Mo.App. 148; Colburn v. Brunswick Flour Co., 49 Mo.App. 415; Storey v. Patton, 61 Mo. 12; Wm. Deering & Co. v. Hanna, 93 Mo. 618; Reed v. Peck, 163 Mo. 12. (2) The giving of plaintiff's instruction number 2 was not error, as it has been held by this court in numerous decisions that the servant assumes all necessary risks incident to his employment, as well as ordinary risks. Thompson v. Railway, 86 Mo.App. 141.
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 were 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 with 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 was used in cleaning the trees, but supposed that the bath consisted only of steam and water. He wore no stockings and his shoes were old and had holes in their soles. From the evidence introduced by plaintiff, it appears that the floor of the washroom at the entrance to the steam room had become worn and eaten by the solution which escaped from the steam room to an extent to form depressions which became filled with the solution during the cleaning process. The sill and bottom of the door likewise had become worn and eaten away, forming apertures through which the solution escaped to the floor of the washroom. Plaintiff had just opened the door for the purpose of removing the trees he had cleaned when he accidentally stepped into one of the pools described. His foot was partly immersed in the solution and was severely burned by the caustic. A chronic sore resulted. The physician who began to treat plaintiff some four months after the injury testified that he found on the foot "an ancient ulcer caused by a caustic burn." He stated that a burn of this character produces "inflammation, low grade of inflammation, heals badly and slowly, sometimes don't heal at all."
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...
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