73 S.W. 167 (Mo. 1903), Curtis v. McNair

Citation:73 S.W. 167, 173 Mo. 270
Opinion Judge:VALLIANT, J.
Party Name:CURTIS v. McNAIR et al., Appellants
Attorney:Seddon & Blair and Robert A. Holland, Jr., for appellants. Johnson, Houts, Marlatt & Hawes for respondent.
Case Date:March 18, 1903
Court:Supreme Court of Missouri
 
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Page 167

73 S.W. 167 (Mo. 1903)

173 Mo. 270

CURTIS

v.

McNAIR et al., Appellants

Supreme Court of Missouri, First Division

March 18, 1903

Appeal from St. Louis County Circuit Court. -- Hon. John W. Booth, Judge.

Affirmed.

Seddon & Blair and Robert A. Holland, Jr., for appellants.

(1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendants at the close of plaintiff's evidence in chief, and also at the close of all the evidence. (a) There was no evidence of any negligence on the part of defendant. It has been repeatedly held in this State that it is not necessary for the master to furnish any particular sort of appliance for the use of the servant. In this case the master saw fit to furnish the servant with a furnace that had no screen in front of it. This, however, would create no liability on the part of the master. Cagney v. Railroad, 69 Mo. 416; Smith v. Railroad, 69 Mo. 32; Winkler v. St. L. Basket and Box Co., 137 Mo. 394; Epperson v. Postal Cable Co., 155 Mo. 346; Holloran v. Union Iron and Foundry Co., 133 Mo. 470. (b) The evidence shows quite clearly that plaintiff assumed whatever risk there was in working near the furnace without a screen. He says himself that he knew there was no screen, and knew it was dangerous to work without a screen. He knew that there was apt to be a blow-out toward the close of every casting. Moreover, he had frequently worked in front of the furnace, and between the furnace and the screen, and hence knew just how to look out for and avoid the blowouts. Epperson v. Postal Cable Co., 155 Mo. 346; Nugent v. Kauffman Milling Co., 131 Mo. 241; Tyler v. Bothe, 117 Mo. 475; Stagg v. Westen Tea Co., 69 S.W. 391; Spiva v. Osage Coal Co., 88 Mo. 68; McAuliffe v. Gale, 11 Amer. Neg. Rep. 6. (2) The court erred in giving instruction A at the request of plaintiff. (a) The following portion of said instruction is erroneous: "And that the danger, if any, to which plaintiff was so exposed, was dependent, to a great degree, upon the degree of atmospheric pressure existing at any time within the said furnace, and tending to force its contents out through said notch hole." The error in said portion consists in this, that there was no evidence upon which to base the said portion of instruction. There was no evidence tending to show that the blow-outs depended upon the degree of pressure. Upon the contrary, all the testimony of all witnesses who testified on this point is to the effect that the blow-outs were due to the manner in which the iron in the hole became stopped up. It is well settled in this State that it is erroneous to give an instruction that is not based upon any evidence. Stone v. Hunt, 114 Mo. 66; Evans v. Interstate Co., 106 Mo. 594; State ex rel. v. Hope, 102 Mo. 416; State v. Brown, 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 246. (b) Said instruction is further erroneous in that it entitles the plaintiff to recover if the defendants knew that the screen was necessary to the safety of their employees, and failed to have the screen. This portion of said instruction is erroneous, because the master is not liable for every failure to provide for the safety of his employees even if he knows that certain protections are necessary. It is only where his failure indicates absence of ordinary care that there is any liability. (c) Said instruction is further erroneous in that it predicates a right of recovery if the foreman assured the plaintiff that while the screen was absent they would not blow the furnace hard, and that plaintiff relied upon this assurance. This portion of the instruction is erroneous because it does not require the jury to find that on this occasion the defendants did in fact blow the furnace hard, and that such hard blowing was the cause of the accident in question. This portion of the instruction is further erroneous because it predicates a recovery upon a finding that the plaintiff was relying upon said assurance of the foreman, when there is not a scintilla of evidence to the effect that plaintiff relied upon said assurance. Stone v. Hunt, supra; State ex rel. v. Hope, supra; Evans v. Interstate Co., supra; State v. Brown, supra; Wilkerson v. Eilers, supra. (3) The court erred in refusing to give instruction 5 asked by defendants, and refused by the court. Said instruction reads as follows: "The court instructs the jury that in arriving at your verdict you will disregard all the evidence tending to prove that plaintiff received an assurance from the defendants' foreman that a full blast would not be used while the screens were not in position." This instruction should have been given because there was no allegation in plaintiff's petition of any such assurance, or of any reliance upon such assurance by the plaintiff. The parties are bound by the theories embodied in their pleading, and can not state one cause of action and recover on another. Chitty v. Railroad, 148 Mo. 64; Yarnall v. Railroad, 113 Mo. 376; Melvin v. Railroad, 89 Mo. 106; Daugherty v. Midland, 53 N.E. 844.

Johnson, Houts, Marlatt & Hawes for respondent.

(1) The petition properly charges, and the evidence showed, negligence on the part of the defendants in failing to provide, at the time of the injury to plaintiff, a screen or other appliance to protect defendants' employees, including plaintiff, from danger of melted iron, slag, etc., being blown upon them from the "iron notch" in the furnace. (a) The general rule is that the master is bound to exercise reasonable care to prevent accidents to his workmen; he is bound to furnish suitable machinery, and see that it is properly protected. Wood, Master and Servant (2 Ed.), sec. 329; Shearman & Redfield, Negligence (5 Ed.), sec. 194; Rodney v. Railroad, 127 Mo. 689; Hough v. Railroad, 100 U.S. 217; Williams v. Railroad, 119 Mo. 322. (b) This occupation being attended with danger to life and limb of their employees, a higher duty, that of using all reasonable precautions, and of obtaining all appliances readily obtainable for the protection of those employees, devolved upon defendants. Mather v. Rillston, 156 U.S. 391-398; Burke v. Anderson, 69 F. 314; Western Coal & Mining Co. v. Berberich, 94 F. 333; Deweese v. Meramec Iron Co., 128 Mo. 423, affirming 54 Mo.App. 476; Keegan v. Kavanaugh, 62 Mo. 232; Hysell v. Swift, 78 Mo.App. 44. (2) Plaintiff did not by remaining in the defendants' employ "assume the risk" of injury. (a) The evidence was undisputed that plaintiff was not an experienced furnace man, and that he did not know that blow-outs occurred without warning. He did not know the danger, and consequently could not assume the risk. Doyle v. Trust Co., 140 Mo. 1; Sullivan v. Railroad, 107 Mo. 66; Connelly v. St. Joseph Press Ptg. Co., 166 Mo. 463. (b) The duty to provide safe instrumentalities, including a safe place to work, and safe appliances for the servant, is a personal duty of the master. Failure to perform this duty is negligence, against which the master can not contract; consequently there is no such thing as "assumption of risk" by the servant of injury arising from neglect of the master to fulfill this duty. Blanton v. Dold, 109 Mo. 75; Settle v. Railroad, 127 Mo. 343; 1 Bailey Personal Injuries, pr. 469; Pauck v. St. L. D. B. & P. Co., 159 Mo. 477; Wendler v. People's House Fur. Co., 165 Mo. 536; Pauck v. St. L. D. B. & P. Co., 166 Mo. 644. (3) There was no "assumption of risk" in this case. Plaintiff complained to the foreman that the screen was not up, and was told the furnace "would not be blown hard, until it was put up." This amounted to an assurance to plaintiff, and justified his remaining at work. Shearman & Redfield, Negligence (5 Ed.), p. 372; Wharton, Negligence, sec. 221; Thorpe v. Railroad, 89 Mo. 650; Railroad v. Babcock, 154 U.S. 200; Hoffman v. Dickinson, 31 W.Va. 152; Stephens v. Railroad, 96 Mo. 212. (4) The question whether continuing in the service, with knowledge that the screen was not in position, should defeat plaintiff's action is, under our decisions, a question of contributory negligence, and under the facts in the case -- especially in view of the fact that plaintiff did not know of the danger of these sudden blow-outs, without warning, and of the assurance given him by the foreman which lulled him into security -- it was undoubtedly a question of fact for the jury. Blandon v. Dold, 109 Mo. 75; Settle v. Railroad, 127 Mo. 343; Hamilton v. Mining Co., 108 Mo. 376; O'Mellia v. Railroad, 115 Mo. 205; Railroad v. Mares, 123 U.S. 710; Pauck v. St. L. D. B. & P. Co., supra; Wendler v. People's House Fur. Co., supra; Hamman v. Cent. Coal & Coke Co., 156 Mo. 244. (5) The court did not err in admitting evidence of the promise to abate the force of the blast while the screen was down. It was properly admitted under the general denial of assumed risk and contributory negligence. Conroy v. Vulcan Iron Works, 62 Mo. 35; Connolly v. St. Joseph Press Ptg. Co., 166 Mo. 464. (6) The instruction on the measure of damages was correct. Schmitz v. Railroad, 119 Mo. 277; Rosenkranz v. Railroad, 108 Mo. 9; Merriles v. Railroad, 163 Mo. 492.

OPINION

[173 Mo. 277] VALLIANT, J.

Defendants own and operate a blast furnace, and plaintiff, while in their employ, suffered serious personal injuries which he alleges resulted from their negligence.

The petition states in detail the character of the furnace and the method of operating it. From this it appears that iron ore is put into the furnace, and when it has been reduced to a certain condition the molten iron is caused to flow out through an opening called the "iron notch" into receptacles provided for its further disposal. This flow of molten iron is driven out by a blast of air forced into the furnace. In this operation there was danger of particles of melted metal, hot ashes and slag...

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