Glover v. Meinrath
| Decision Date | 18 February 1896 |
| Citation | 34 S.W. 72,133 Mo. 292 |
| Parties | GLOVER v. MEINRATH et al. |
| Court | Missouri Supreme Court |
2. In an action to recover for injuries received by plaintiff while employed as engineer in defendants' mill, and in working with a certain machine, the question whether or not such machine was being used "in the manner contemplated by its manufacturer" is immaterial, and an instruction that makes the liability of defendants, or the risk assumed by plaintiff in his employment, dependent on whether the machine was so used, is misleading and erroneous. Brace, C. J., dissenting.
Appeal from circuit court, Jackson county; James Gibson, Judge.
Action by W. O. Glover against Eli Meinrath and others. Judgment for plaintiff, and defendants appeal. Reversed.
Albert Young, for appellants. F. V. Kander and F. B. Case, for respondent.
This is an action for damages caused to plaintiff while at work for defendants at their mill as an engineer, at the trial of which plaintiff obtained a judgment for $2,000. The appeal was taken by defendants to the Kansas City court of appeals, and afterwards, on their motion, was ordered transferred to this court, on the ground that the bill of exceptions and the record in the case disclosed the fact that the constitutionality of an act of the legislature was involved. The assignments of error made by the appellants, that will be noticed in this opinion, are the refusal of the trial court to quash the panel of jurors called to try the case, the giving of improper instruction on behalf of the plaintiff, the refusal of proper instructions asked by defendants, and the after-giving of same improperly modified by the court on its own behalf.
The first assignment of error, involving as it does the constitutionality of the law under which the jury that tried the case was selected and summoned is the one that alone gives this court jurisdiction, as, without it, on account of the amount involved, we would be wanting in authority to hear and determine the question raised in the second assignment. We hope that the opinion delivered in the case of Dunne v. Railway Co., reported in 32 S. W. 641, and twice approvingly quoted and followed since by this court, will put at rest all further controversy as to the constitutionality of the act of April 1, 1891, providing and designating the manner of selecting petit jurors and prescribing their qualifications, in counties in this state which now have or which may hereafter contain a city of more than 50,000 inhabitants and less than 300,000 inhabitants, and known in the common parlance of the Kansas City bar as the "Kansas City Jury Law"; so that appeal from the trial court of that city will reach the Kansas City court of appeals or this court, according as provided by law, the question as to the constitutionality of that act being treated as a settled and determined issue. In disposing of plaintiff's first assignment of error, we will go into no discussion as to the validity or constitutionality of the act, further than to say that we adhere to and reaffirm the opinion of this court in the case of Dunne v. Railway Co., above cited.
As previously said, this action is for personal injuries received by plaintiff while in the employ of defendants as an engineer, based upon a petition charging: That defendants had and used in their mill a certain machine constructed and used for the purpose of drying corn meal and other food products manufactured by them, intended to be used and operated as a steam drier, and that same should have been heated by steam from the boiler in said mill of defendants; but that defendants negligently, carelessly, and unskillfully used and operated said drier as a hot-water machine, and caused the same to be heated by hot water and steam, and not by steam alone, and by changing, using, and operating said machine as a hot water and steam drier, instead of heating and using said machine with steam alone, as the same was constructed and intended to be used, made it a dangerous machine, as defendants well knew. That defendants negligently and carelessly failed and neglected to inform plaintiff of the manner in which said machine was at that time operated, and of the dangerous character thereof, caused by changing the method of operating and using same. That plaintiff was ignorant of the manner in which said machine was used, and of the change made in heating same, as above named. That on the night of June 2, 1892, while in the employ of defendants as an engineer, with the duty of superintending and operating the boilers and engines used in and about defendants' mill, and repairing the steam machinery used therein, he was directed, by the miller in charge of and operating the milling machinery of said mill, to repair the packing box around the shaft of said drier. That plaintiff, supposing and believing that the drier was operated and conducted as a steam drier, as the same was constructed and intended to be used, resorted to the proper methods of cooling a steam drier, and in order to make the said repairs loosened the nuts of the bolts of said packing box; but that, by reason of the change in the method of heating said machine, as aforesaid, the drier being partially filled with hot water and steam, the said hot water and steam escaped with a violent pressure upon plaintiff, scalding and burning him, to his damage, etc. That, had said machine been used as the same was constructed and intended, and the same heated with steam, the said injury would and could not have occurred. The defendants set up, by way of answer, a general denial, and a plea of contributory negligence on the part of plaintiff and his coemployés and fellow servants.
The testimony shows that plaintiff was scalded while attempting to repack a packing box in the steam drier at that time being used by defendants in their mill, and heated by means of hot water and steam, instead of by steam alone, as it was contemplated to be heated by its manufacturer. The testimony shows that the machine was not rendered in any wise more dangerous as a machine while in use about the mill, but that, as changed, it was a perfect machine, and did better the work for which it was purchased and intended to be used by defendants than when heated alone by steam. The drier consisted of a cylinder composed of a number of steam pipes closed at one end, while the other ends are screwed into a round, hollow chamber. This hollow chamber forms one end of the drier, and has a hollow journal cast with it on which the cylinder revolves. It was while attempting to repack the packing box in which this journal was working that the plaintiff was scalded by the hot water issuing from the machines while he was unscrewing the nuts from the bolts that held the packing box in place. The change in the method of heating the machine was made by the day engineer at the mill by simply inserting a stopcock or valve in the pipe that conveyed the water or condensation that would gather in the machine by the steam cooling off, so as to enable him, by turning this valve, to check the flow of the condensed water in the drier, and hold it in the machine, instead of permitting its return to the water compartment of the boilers in the basement, to be reheated and returned to the machines as steam. This was done in order to reduce the temperature of the drier, so that it would not burn or scorch the meal and other food products, as they were run over...
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