Brandt v. Kansas City Breweries Company
| Decision Date | 04 December 1911 |
| Citation | 141 S.W. 444,159 Mo.App. 568 |
| Parties | WILLIAM J. BRANDT, Appellant, v. KANSAS CITY BREWERIES COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.
AFFIRMED.
Judgment affirmed.
L. A Laughlin for appellant.
It was the duty of defendants to provide plaintiff a reasonably safe place in which to work. Placing a cask on its side so near the edge of the casks on which it rested that the jarring and shaking of the car by rolling half barrels of beer across the floor of the car would cause the cask to roll, certainly made a case of negligence to go to the jury. This is the theory on which this case was brought and hence, it is immaterial whether the cask was placed in a dangerous position by a fellow-servant or a stranger, or whether it got in such position by an earthquake or the operation of the law of gravitation. If the defendant ordered plaintiff into a place of danger when the exercise of reasonable care on the part of the defendant would have disclosed the danger, then the defendant is liable. The facts in this case bring it within the rule laid down in the following cases: Rigsby v. Oil Well Supply Co., 115 Mo.App. 297; s. c., 130 Mo.App 128; De Weese v. Mining Co., 128 Mo. 423, affirming s. c., 54 Mo.App. 476; Chicago Hair & Bristle Co. v Mueller, 203 Ill. 558, affirming 106 Ill.App. 21; Jarrell v. Blackbird B. C. Co. (Mo.), 136 S.W. 754; Mosher Mfg. Co. v. Boyles (Tex.), 132 S.W. 492; Webster v. Stewart I. W. Co. (Ky.), 104 S.W. 708. The lower court granted the new trial on the authority of the following cases: Bradley v. Tea & Coffee Co., 213 Mo. 320; Sutherland v. Lumber Co., 149 Mo.App. 338. But these cases are not applicable to the facts in the case at bar. In the Bradley case, the bags of coffee which fell were moved by the decedent and in the Sutherland case, the piles of lumber which fell were moved by the decedent. But in the case at bar, the casks were not touched by plaintiff. He had nothing to do with them, so that no act of plaintiff was the cause of the cask falling. When the bottlers left the car, defendant should have seen that the car was reasonably safe for the brewers to enter the car and load the keg beer. The issue of the negligence of defendant was properly submitted to the jury and we ask that the judgment of the lower court be reversed and the cause remanded to the trial court with instructions to enter judgment in accordance with the verdict.
J. E. McFadden and O. Q. Claflin, Jr., for respondent.
Plaintiff, a brewer employed at a brewery operated by defendant in Kansas City, was injured while engaged in loading keg beer into a car and alleges that his injuries were caused by the negligence of defendant in failing to provide him a reasonably safe place in which to work. The answer contains a general denial and pleas of assumed risk and contributory negligence. At the close of the evidence the court refused the request of defendant for a peremptory instruction and submitted issues of fact to the jury. A verdict was returned for plaintiff but afterwards defendant's motion for a new trial was sustained on the ground "that the court erred in not sustaining the said demurrer to the evidence . . . and in not finding the plaintiff to be injured by a fellow-servant." Plaintiff appealed.
Material facts disclosed by the evidence may be stated as follows Plaintiff had been employed as a brewer by defendant for more than a year preceding the injury and, frequently had been required to assist in loading beer in railroad cars for shipment. Quite often keg beer and bottled beer were loaded in the same car to make a load and that is what was being done in the present case. There is evidence tending to show that the brewing and bottling departments were under separate foremen and that the brewers and bottlers belonged to separate labor unions and worked under different contracts of employment made with defendant in their behalf by their respective unions. A shipping clerk, however, attended to supervising the loading of cars where, as here, the load was to be partly of keg and partly of bottled beer, the clerk selected men from the two departments to do the loading and we are accurate in saying that cars were loaded under the direction and supervision of a single foreman (the shipping clerk), though the men for the work were drawn from different departments of the brewery. Some bottled beer was packed in cases and some in casks. In this instance the bottled beer loaded into the cars was in casks and one half of the car was filled with such casks before the brewers began loading the other half with kegs of unbottled beer. When, as often happened, the roof of the car was not high enough to admit three tiers...
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