Studenroth v. Hammond Packing Co.

• Decision Date: 25 April 1904
• Court: Missouri Court of Appeals
• Parties: STUDENROTH v. HAMMOND PACKING CO.<SMALL><SUP>*</SUP></SMALL>

81 S.W. 487

106 Mo. App. 480

STUDENROTH v. HAMMOND PACKING CO.^*

Kansas City Court of Appeals. Missouri.

April 25, 1904.

MASTER AND SERVANT — INJURIES TO SERVANT — DEFECTIVE APPLIANCES — ASSUMPTION OF RISK — QUESTIONS FOR JURY.

1. Where a petition in an action for injuries to a servant charged negligence in that defendant permitted a valve to be out of order, and allowed it to remain so after having been notified thereof, without knowledge on the part of plaintiff, and the proof showed that plaintiff discovered and reported the defect to defendant, and received a promise to repair, and, relying on such promise, continued to work, the variance was fatal.

2. Where, in an action for injuries to a servant, there was a fatal variance between the allegations and proof, but there was not a total failure of proof of the cause of action alleged, the petition was subject to amendment, as authorized by Code, § 798. in order to permit a recovery on the cause of action proved.

3. Where plaintiff discovered a defect in defendant's machinery, and notified defendant's foreman thereof, and received a promise from the foreman to repair the same, and at the time he was injured by reason of the defect he did not know but that the repairs had been made, a reasonable time to make the same having elapsed, he did not assume the risk.

4. Where a servant notified his foreman of a defect in the machinery, which could have been repaired in a few minutes, and received the foreman's promise to have the same repaired, whether plaintiff was justified in relying on the foreman having complied with his promise at the time plaintiff resumed his work more than three hours thereafter was for the jury.

5. Mere knowledge on the part of a servant that an appliance is defective, or that risk is incurred in its use, will not, as a matter of law, defeat the servant's action for injuries received in using it, when the danger is not such as to threaten immediate injury, or where it is reasonable to suppose that the appliance may be safely used by the exercise of caution.

6. Where a servant was injured by a defective appliance, which was suitable for use when he entered the master's employment, he did not assume the risk of injury by such appliance becoming defective.

Appeal from Circuit Court, Buchanan County; W. K. James, Judge.

Action by Fred Studenroth against the Hammond Packing Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Johnson, Rusk & Stringfellow, for appellant. Chas. F. Strop and Motter & Shultz, for respondent.

BROADDUS, J.

The defendant is a corporation engaged in the business of slaughtering live stock and in curing and preparing the product thereof for market. Plaintiff, on the 16th day of May, 1902, was in defendant's employ in the capacity of what was known as a "tripe cooker," and in charge of certain vats in which tripe was boiled. These cooking vats are tanks about six feet high, about seven feet long, and four feet wide. The tripe is boiled by means of steam admitted into the vats through pipes, and the amount of steam required is regulated by a valve in the pipes, the valves being manipulated by the use of a wrench. The evidence shows that the plaintiff on the morning of the day mentioned filled a tank with water, and then, by use of the wrench, turned the valve sufficiently to allow steam to escape into the tank, and when the water reached the boiling point he put the tripe into the vat. About 9 o'clock he discovered that the valve had changed from the position in which he had placed it, because there was a greater quantity of steam entering the vat, which caused the water to boil over. He then turned the valve back to its proper position, leaving it about one length open, and continued with the cooking. In about one hour afterwards he informed the foreman, Dreben, that the valve was out of repair, and was informed by him that he would have it repaired. After plaintiff had reset the valve, so as to prevent the flow of too much steam, he was ordered by the foreman to other work outside of the triperoom. He remained away until about 12 o'clock, shortly after which time he returned to the triperoom, when he found the valve unchanged in its position. He then turned it, he says, so as to entirely cut off the flow of steam into the vat, and then turned to get a fork to raise the lid in order to take out the tripe; and while he was doing so, the valve became loose, permitting a full flow of steam into the vat, which caused the water to overflow onto him, whereby he was scalded. It was shown that defendant kept in its employ a mechanic whose duty it was to inspect its appliances and to keep them in repair. There is no dispute but what the pressure of the steam caused the valve to change its position, and that it was owing to defective wrapping that such change occurred....