Beckman v. Anheuser-Busch Brewing Association
| Decision Date | 02 March 1903 |
| Citation | 72 S.W. 710,98 Mo.App. 555 |
| Parties | CHARLES H. BECKMAN, by Next Friend, Respondent, v. ANHEUSER-BUSCH BREWING ASSOCIATION, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.
REVERSED.
STATEMENT BY BROADDUS, J.
The plaintiff in this case, Charles H. Beckman, is a young man nineteen years of age, and for more than five years prior to the injuries complained of had worked for the defendant at its place of business at the northeast corner of Twentieth and Walnut streets in Kansas City, Missouri. The defendant during said time carried on the business of bottling and distributing its beer in said city, and maintained, among others, a bottling department. This department was located in one building, and to the east of it, about twenty-five feet across a driveway, was the cooler, another building used in the company's business. The floor of the bottling department was ten or eleven inches above the level of the driveway. Beginning about four years before the injury, the plaintiff had been called upon, from time to time, with other men in the bottling department, to go across the driveway to the cooler and bring over small hogsheads of beer, and at the time of the accident had had long and continuous experience in this work. These hogsheads were about three feet in height and about two feet in diameter at the ends, bulging in the center to about thirty inches. The door in the cooler was opposite the doorway in the bottling department. The cooler door was three feet above the ground, and leading from it was a skid of about ten feet in length, down which the barrels of beer were rolled, thence over and across the driveway and up a small short skid about four feet long, resting on a stone sill in the doorway into the bottling department, which, as stated, was about ten or eleven inches above the ground. This small skid was a simple appliance and was made of two by six oak lumber, fastened together with two, or as some of the witnesses say, three pieces or cleats underneath, the lower piece being two by six, and the upper piece two by three. The lower end of the skid rested in a small excavation in the ground, made there for the purpose of holding the lower end firm. At the time of plaintiff's injury the skid had been in use about two months, before which time two unfastened boards had been utilized for the purpose; these latter having proved unsatisfactory, they were replaced by the one in controversy here. The method pursued was to allow the barrels to roll down the long skid from the cooling room by their own momentum, each man stepping in behind his own barrel as it reached the ground and continuing across the driveway behind the barrel and guiding it up the short skid in through the door of the bottling room. At the time in question, while plaintiff was guiding a barrel up the short skid, from some cause or other when it got near the top of the skid it rolled back and plaintiff in endeavoring to get out of the way caught his foot under some part of the skid, which caused him to fall; and while he was down the barrel passed over him and injured his leg. It is not very clear just what caused the barrel to fall backward. It must have occurred, however, in one of two ways: either because the plaintiff was not guiding it up the center of the skid, which would cause the skid to tilt and throw the barrel off; or that the skid had been misplaced in some way, which might have also caused both skid and barrel to fall to the ground. The preponderance of the evidence, however, goes to show that the accident occurred as last mentioned. There had been, according to the evidence of plaintiff and two other workmen who did this work almost, if not entirely, to the exclusion of other workmen, no occurrence of a similar kind with this skid. However, some other witnesses say they saw the skid act similarly on one or two other occasions. But if such was the fact it was unknown to either plaintiff or defendant. The finding and judgment were for the plaintiff.
Judgment reversed.
Warner Dean, McLeod & Holden for appellant.
(1) The defendant was only bound to the exercise of reasonable care to provide an appliance that was reasonably safe. This is fundamental. The defendant was not bound to furnish the safest way, nor to maintain it in the safest known way; nor was it bound to make use of any particular kind of appliance. Minnier v. Railroad, 167 Mo. 99; Steinhauser v Spraul, 127 Mo. 562; Pavey v. Railroad, 85 Mo.App. 222; Blanton v. Dold, 109 Mo. 64; Hogan v. Railroad, 150 Mo. 48. (2) The servant assumes the risk of injury, not only from the dangers of his employment which are known to him, but also those which are discoverable by the exercise of ordinary care. Nugent v. Milling Co., 131 Mo. 245; Roberts v. Telephone Co., 166 Mo. 370. And this means all dangers the employee would have discovered if ordinarily observant in using the appliance. There was no latent or hidden danger about this skid. Marshall v. Hay Press Co., 69 Mo.App. 260; Watson v. Coal Co., 52 Mo. 366. (3) The plaintiff assumed the risk of using this crude and simple appliance because: (a) He had used it and its predecessor repeatedly for several years. (b) He knew the lower end rested in the ground and that there was no other arrangement for fastening it in place. (c) He knew if he rolled a hogshead too far on one side, it would tip over. (d) In using a simple appliance like this, the law will not hear him say he was ignorant of anything about it. His ordinary observation during the years he used it must, as a matter of law, have made him fully familiar with it and every danger connected with its use. Marshall v. Hay Press Co., 69 Mo.App. 256; Fugler v. Bothe, 117 Mo. 493; Nugent v. Milling Co., 131 Mo. 245; Marsh v. Chickering, 101 N.Y 396; D'Arcy v. Railroad, 54 N.Y.S. 553; Manley v. Paint Co., 76 Minn. 169; s. c., 78 N.W 1050. (4) When the employer has performed this duty, any injury resulting to the employee falls within the realm of fortuitous accident or is the result of assumed risk or negligence of the servant himself. Fuchs v. St Louis, 167 Mo. 620; Fuchs v. St. Louis, 133 Mo. 201; Beasley v. Transfer Co., 148 Mo. 413; Sullivan v. Railroad, 133 Mo. 18; Brewing Ass'n v. Talbott, 141 Mo. 674; Thompson v. Railroad, 140 Mo. 125. (5) In this case, the long continued use of this skid without injury or complaint from plaintiff or any of the men using it and without injury or obvious danger of injury, should exempt defendant from any imputation of negligence. Marshall v. Hay Press Co., 69 Mo.App....
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