Gleason v. Excelsior Manuf'G Co.

• Decision Date: 20 February 1888
• Citation: 7 S.W. 188,94 Mo. 201
• Parties: GLEASON v. EXCELSIOR MANUF'G CO.
• Court: Missouri Supreme Court

7 S.W. 188

94 Mo. 201

GLEASON v. EXCELSIOR MANUF'G CO.

Supreme Court of Missouri.

February 20, 1888.

1. NEGLIGENCE — DANGEROUS PREMISES — CONTRIBUTORY NEGLIGENCE.

Plaintiff's husband, a night-watchman, with a lighted lantern, fell through a hatchway of defendant, which it was his duty to close when left open, and was killed. Held, that deceased was guilty of such negligence as precluded a recovery.¹

2. MASTER AND SERVANT — RISKS OF EMPLOYMENT — DANGEROUS PREMISES.

It appeared from the evidence of plaintiff, that her husband was killed by falling through a hatchway which it was his duty to keep closed, and that he knew, when he entered into the employment of defendant, that there were no guards around said hatchway, and the duty of closing it was to be done without such protection. Held, that deceased took upon himself all risks incident to the employment, and the court erred in overruling defendant's demurrer to the evidence and submitting the case to the jury.²

Appeal from circuit court, St. Charles county; W. W. EDWARDS, Judge.

C. P. & J. D. Johnson, for appellant. A. R. Taylor and M. McKeay, for respondent.

NORTON, C. J.

Plaintiff sues to recover damages for the death of her husband, John Gleason, alleged to have been occasioned by the negligence of defendant, in whose employment said Gleason was as a night-watchman in a certain building of defendant, in the city of St. Louis. The petition alleges that, as such watchman, while walking over the second floor in the night-time, said Gleason fell through a hatchway, and sustained injuries from which he died; that said injuries were occasioned by the negligence of defendant in constructing said hatchway on a level with the floor, without protecting it by any railing or guard, and in leaving said hatchway open. The answer admits the accident, but denies that it was occasioned by any fault or negligence of defendant, and avers in substance that it was the result of said Gleason's own negligence and carelessness, and that of his fellow-servants. After two mistrials in the circuit court of the city of St. Louis, the venue of the cause was changed to St. Charles county, where, upon a trial being had, judgment was rendered for plaintiff, from which the defendant has appealed, and assigns for error the action of the court in refusing to sustain a demurrer to the evidence, and in giving and refusing instructions. The following facts are shown by the evidence: That defendant is a corporation in the city of St. Louis, engaged in the manufacture and sale of stoves; its foundry or factory is divided up into different apartments, one of which is designated the "mounting department," in which the castings of stoves, which are previously made in another department called the "moulding department," are finished and "mounted" into stoves, and then stored away for sale and shipment. This "mounting department" is in a four-story building, the first floor or basement of which is used for storage purposes, the next floor alone for shipping, the next for "mounting" stoves, and the next for storage of stoves. Through these several floors there are four series of hatchways, five feet by five feet six inches in size, and through these, stoves, castings, etc., are raised and lowered by means of block and tackle arrangements. These hatchways are on a level with the floors, without fenders or guards, but have doors to them, hung on hinges, so that they can readily be closed and opened. These hatchways were always open during working hours, and Gleason, the deceased, fell through one of these hatchways in the floor of the mounting-room, which had been left open by some one of a gang of five or six men who had been engaged in raising and lowering stoves through said hatchway when they quit work. Sterham testified that he was kind of a boss of these men, but, on...