Bibber v. Swift & Co.
| Decision Date | 18 February 1921 |
| Citation | 228 S.W. 69,286 Mo. 317 |
| Parties | RUFUS VAN BIBBER v. SWIFT & COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. L. A. Vories, Judge.
Reversed.
Robert A. Brown and Richard L. Douglas for appellants.
(1) The peremptory instruction requested by the defendant at the close of all the testimony should have been given for the following reasons: (a) The defendant was not negligent in failing to provide a strainer in its oil pipe. Morgan v Mfg. Co., 120 Mo.App. 590; Baier v. Heibel, 103 Mo.App. 622; Cobb v. Cotton Oil Co., 181 S.W. 1196; Hester v. Packing Co., 84 Mo.App. 451; Clippard v. Transit Co., 202 Mo. 432; Wilks v. Railroad, 141 S.W. 910. (b) The defendant had provided an additional shut-off valve, described in evidence as the needle valve. The two valves were within two inches of each other, and even if one had become clogged or defective from cinders or other substances in the oil, the other valve could have been conveniently and effectively used to shut off the flow of oil into the furnace. The defendant had performed its full duty in thus providing against the possible defective condition of one valve, and for that reason its demurrer to the evidence should have been sustained. Grattis v. Railroad, 153 Mo. 380; Chrismer v. Tel. Co., 194 Mo. 189; Brands v. Car Co., 213 Mo. 698; Bohn v Railroad, 106 Mo. 429; Muirhead v. Railroad, 103 Mo. 251; Friel v. Railroad, 115 Mo. 503; Shinners v. Mullins, 136 Mo.App. 298; Conway v Railroad, 24 Mo.App. 235. (c) The defendant was not charged with negligence in employing an incompetent or negligent servant in the person of McVey. If perchance one valve was leaking, as alleged by plaintiff, it was the duty of McVey to know this fact and to use the other valve. If he failed to perform his full duty in that regard, his negligence was that of a fellow servant, for which the defendant could not be held liable. English v. Rand Shoe Co., 145 Mo.App. 439; Kelly v. Steamboat Co., 74 Conn. 343, 50 A. 871; Papagello v. Hyde, 82 N. J. L. 690, 83 A. 951; Knapp v. Voorhees, 74 A. 440; Stringham v. Stewart, 111 N.E. 188, 18 N.E. 870; Steinke v. Diamond Match Co., 87 Wis. 477, 58 N.W. 842; Rogers v. Shiele, 148 Mo.App. 53; Fogarty v. Transfer Co., 180 Mo. 490. (d) While the rule is well settled that under proper facts negligence may be established by circumstantial evidence, in such cases, however, the evidence must tend to establish the negligence charged after other causes are excluded. Where, as here, plaintiff's evidence does no more than tend to show a possible cause, for which the defendant might be liable, and fails to exclude other causes, and leaves it in the realm of speculation whether the accident happened from the negligence charged or from some other cause, then the court should say, as a matter of law, that plaintiff has failed to sustain his burden, and should take the issue from the jury. Smith v. Railroad, 177 Mo.App. 269; Fink v. Railroad, 161 Mo.App. 314; Rogers v. Packing Co., 180 Mo.App. 227; Gillespie v. Railroad, 144 Mo.App. 508; Trigg v. Lumber Co., 187 Mo. 227; McGrath v. Transit Co., 197 Mo. 97; Warner v. Railroad, 178 Mo. 125; Fowler v. Electric Co., 143 Mo.App. 422; Young v. Railroad, 113 Mo.App. 636. (e) On the facts which appear from plaintiff's own testimony, the lower court erred in refusing to instruct the jury that as a matter of law plaintiff was guilty of negligence, which contributed directly to cause the injuries sustained by him. Collett v. Kuhlman, 243 Mo. 585; White v. Railroad, 250 Mo. 482; Taylor v. Railroad, 256 Mo. 216. (2) The court erred in giving, at the request of plaintiff, his instruction No. 1. Ganey v. Kansas City, 259 Mo. 663; Burrows v. Likes, 180 Mo.App. 452; Bryan v. Lamp Co., 176 Mo.App. 729; Gessner v. Ry. Co., 132 Mo.App. 586; Linn v. Bridge Co., 78 Mo.App. 118; Coffey v. Carthage, 186 Mo. 583; Crow v. Railroad, 212 Mo. 610; James v. Railroad, 107 Mo. 484; Henson v. Kansas City, 210 S.W. 17.
Mytton & Parkinson for respondent.
(1) Plaintiff's case, under the pleadings and the evidence, was properly submitted to the jury, and defendant's instruction in the nature of a demurrer, was properly refused. McLain v. Ry. Co., 100 Mo.App. 384; 2 Thompson on Trials, section 1663; Baldwin v. Springfield, 141 Mo. 205; Powers v. Transit Co., 202 Mo. 280; Yost v. Cement Co., 191 Mo.App. 432. (2) There was no error in plaintiff's instructions. (3) Defendant's Instruction No. 7 was properly refused. It exempted defendant from liability if the needle valve mentioned in evidence was furnished. (4) The explosion was the direct result of the negligent act of the defendant, in failing to use a strainer to prevent the clogging of the shut-off valve. The failure of McVey to discover the oil leaking into the furnace, and to use the needle valve to shut off the flow of oil, may have been a negligent act on his part, and may have concurred in causing the explosion; however, where the negligence of a master concurs with the negligence of a fellow-servant to cause an injury, the master is, and remains, liable, notwithstanding concurring negligence of the fellow-servant. Moore v. Transit Co., 193 Mo. 418; Cole v. Transit Co., 183 Mo. 94; Mertz v. Rope Co., 174 Mo.App. 94; Dittrich v. Mfg. Co., 190 S.W. 1010. (5) This court cannot say, as a matter of law, that the plaintiff, was guilty of negligence barring his cause of action, in not knowing that crude oil projected into a heated and unlighted furnace would explode, where the defendant contended in the trial court and introduced expert evidence to show that no such explosion could occur as a result of such conditions. Such a position or holding is untenable -- is unthinkable.
J. T. Blair, J., dissents.
OPINIONIn Banc.
This is a suit for personal injuries alleged to have been sustained by plaintiff from an explosion in a furnace in which oil was used for fuel in defendant's fertilizer plant at St. Joseph.
The charge of negligence in the petition is, in substance, that defendant carelessly maintained a shut-off device or valve in defective condition, so that the oil could not be completely turned off from the furnace, and negligently maintained its oil pipe without a strainer therein to prevent cinders, waste and dirt and other obstructions in the oil from passing into and clogging said shut-off device or valve, and causing it to leak. That said leaking device or valve permitted oil to flow into the heated furnace immediately after the flames had been extinguished, and thereby gas was formed, which caused an explosion, and injured plaintiff while oiling certain machinery in the performance of his duty.
The answer was a general denial.
Plaintiff's evidence tended to show: That he was about 40 years old. That he had been raised on a farm, and had long experience in handling and operating steam thrashers and the engines connected therewith. For some time prior to his injury, six or eight months, he having been injured on the 17th of November, 1916, he was engaged in the work of tending, as a machinist, the carrier and dryer devices used for carrying and drying the manure from which the fertilizer was manufactured by the defendant. That this carrier or conveyor moved the fresh manure and emptied it into a spout in the top of the furnace through which it fell into the dryer, a portion of which projected into and through the south end of the furnace. The furnace was about five or six feet wide, ten or twelve feet long, and eight or ten feet high; it ran north and south, the long way, the front being at the north end. The furnace was heated with fuel oil, and the purpose was to dry the manure in this dryer, and after it was sufficiently dry, to convey it to another apparatus or machine, where it was further prepared for use. The plaintiff had no connection with firing or operating the furnace, but his duties were confined to the machinery, and among other things, he was required to oil it.
McVey was the night watchman, but among his duties was that of lighting and firing the furnace about an hour every morning before the time for the day's work to commence. On this occasion, in accordance with his usual custom, McVey had started the furnace, and it was burning when the plaintiff arrived to begin work, which was about half past six o'clock in the morning. In order to oil certain portions of the machinery around and connected with the carrier, the plaintiff was obliged to go on top of the furnace, but he would always require that the fire in the furnace be put out before so doing. There was a ladder on the outside, at the northwest corner of the furnace, reaching an iron runway about three feet higher than the furnace, which extended to the south end of the furnace, where the carrier, which plaintiff intended to oil, was located. Plaintiff signified his intention to McVey to go on top of the furnace to oil and while he was standing at the ladder ready to ascend, McVey attempted to turn down the shut-off valve so as to extinguish the fire. He watched McVey turn the stem of the valve, and apparently use exertion to turn it down as far as he could. But when McVey ceased his endeavors, although the fire went out, a stream of oil almost the size of a lead pencil was seen by the plaintiff to be still projecting itself some three to five inches from the end of the burner-pipe into the furnace. The plaintiff says that he also observed that the stem of the valve was not screwed down as far as it should go to completely close, because there was a portion of the bright part of it still visible, which would have been entirely hidden if it had been screwed clear down. Plaintiff says that he stood there talking to...
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