Brooks v. Kansas City Gas Co.

• Citation: 127 S.W.2d 427,343 Mo. 1226
• Decision Date: 15 March 1939
• Docket Number: 35248
• Parties: Agnes J. Brooks, Administratrix of the Estate of Frank E. Brooks, v. Kansas City Gas Company, Appellant
• Court: United States State Supreme Court of Missouri

127 S.W.2d 427

343 Mo. 1226

Agnes J. Brooks, Administratrix of the Estate of Frank E. Brooks, v. Kansas City Gas Company, Appellant

No. 35248

Supreme Court of Missouri

March 15, 1939

Rehearing Denied February 21, 1939.

Motion to Transfer to Court en Banc Denied March 15, 1939.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed.

Charles H. Mayer and Charles M. Miller for appellant.

(1) The trial court erred in refusing the peremptory instructions requested by the defendant, at the close of plaintiff's evidence in chief, and at the close of all the evidence for the reason that plaintiff proved no case of actionable negligence against defendant upon the grounds, (a) that defendant Gas Company was guilty of any negligence in the alleged failure to furnish plaintiff, Brooks, a "reasonably safe place to work" or (b) that it did negligently fail to furnish "goggles or other protection," or (c) that it did negligently fail to warn Brooks that "particles of metal might blow into his eye and injure him." Harbacek v. Fulton Iron Works Co., 287 Mo. 479, 229 S.W. 803; Wulfert v. Murch Bros. Const. Co., 232 S.W. 243; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Adelsberger v Sheehy, 332 Mo. 954, 59 S.W.2d 647; Crowley v. Amer. Car & Found. Co., 279 S.W. 214. (2) The trial court erred in giving plaintiff's Instruction 1, upon which recovery was predicated for the reason, (a) that the instruction improperly submitted to the jury the alleged failure of defendant Gas Company to furnish plaintiff a reasonably safe place to work, (b) failure to furnish "goggles or other protection," while doing said work, and (c) failure to have warned said plaintiff that said particles might blow into plaintiff's eye and injure him. These alleged charges of negligence were submitted in the disjunctive, and the jury were instructed that if they found any one of the three alleged charges in favor of plaintiff, then they should return a verdict in favor of the plaintiff. Defendant urges that there was no evidence upon which to predicate any one of the alleged charges of negligence and that it was error for the trial court to have submitted any of the alleged charges of negligence to the jury. Also that the instruction was a roving commission to the jury and did not properly submit the alleged charges of negligence to the jury, even if there was evidence upon which to submit them, or any of them. Harbacek v. Fulton Iron Works Co., 287 Mo. 479, 229 S.W. 803; Wulfert v. Murch Bros. Const. Co., 232 S.W. 243; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 647; Crowley v. Amer. Car & Found. Co., 279 S.W. 214.

G. W. O'Donnell, W. R. Moore, Moore & O'Donnell and Walter A. Raymond for respondent.

(1) The court properly overruled the peremptory instructions requested by the defendant. Cento v. Security Bldg. Co., 99 S.W.2d 5; Ensler v. Mo. Pac. Ry. Co., 324 Mo. 530, 23 S.W.2d 1037; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 810. (a) The issue of defendant's negligence in failing to furnish plaintiff a reasonably safe place to work was for the jury on the evidence in this record. Smith v. Southern Ill. & Mo. Bridge Co., 326 Mo. 109, 30 S.W.2d 1083; Anderson v. Asphalt Distributing Co., 55 S.W.2d 692; Vordermark v. Hill-Behan Lbr. Co., 12 S.W.2d 501; Stewart v. Laclede Gas Light Co., 241 S.W. 911; Baker v. Scott County Milling Co., 323 Mo. 1089, 20 S.W.2d 497; Snyder v. Amer. Car & Foundry Co., 322 Mo. 147, 14 S.W.2d 607. (b) The court properly submitted to the jury the issue of defendant's negligence in failing to furnish plaintiff with goggles for protection against metal dust and filings being blown into his face by gas under heavy pressure while he was removing plugs from the gas main to test for leaks. Hughes v. Miss. River & B. T. Ry., 309 Mo. 560, 274 S.W. 708; Pearson Elevator Co. v. M.-K.-T. Ry. Co., 336 Mo. 583, 80 S.W.2d 140; Kincaid v. Birt, 29 S.W.2d 98; Amis v. Standard Oil Co. of Indiana, 233 S.W. 201; Oglesby v. St. L.-San F. Ry. Co., 318 Mo. 79, 1 S.W.2d 180; Wall v. Philip Bohan Boat, Boiler & Tank Co., 333 Mo. 619, 62 S.W.2d 767. (c) The court did not err in submitting to the jury the issue of defendant's negligence in failing to warn plaintiff that particles of metal might blow into his eye and injure him. Nagy v. St. Louis Car Co., 37 S.W.2d 517; Gettys v. Amer. Car & Foundry Co., 322 Mo. 787, 16 S.W.2d 88; Mooney v. Monark Gasoline & Oil Co., 317 Mo. 1255, 298 S.W. 78; McNatt v. Wabash Ry. Co., 108 S.W.2d 33. (2) The trial court committed no error in giving plaintiff's Instruction 1. Cooper v. Winwood Amusement Co., 227 Mo.App. 608, 55 S.W.2d 741; Gately v. St. L.-San F. Ry. Co., 332 Mo. 1, 56 S.W.2d 62.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Frank C. Brooks brought this suit against the appellant, Kansas City Gas Company, to recover damages for the loss of an eye, alleged to have been caused by the negligence of the Gas Company. He obtained a judgment in the trial court in the sum of $ 8500. After a motion for new trial was filed and before a hearing was had on that motion, the plaintiff died. The cause was revived in the name of respondent, Agnes J. Brooks, plaintiff's wife, and administratrix of his estate. Thereafter the motion for new trial was overruled and the Gas Company appealed.

In the course of the opinion deceased, Frank C. Brooks, will be referred to as the plaintiff. Plaintiff's alleged injury to his eye occurred on June 3, 1925. The long delay in bringing the case to hearing was caused by plaintiff's neglect to file his suit until nearly five years after the alleged injury occurred. Then the case was permitted to lie dormant for a number of years. Thereafter plaintiff changed attorneys, and not until October 28, 1935, did the trial of the case begin. Since appellant contends that plaintiff's evidence did not support the verdict, we will state the facts as favorable to plaintiff's theory as the evidence warrants. Plaintiff became an employee of the defendant Gas Company in the year 1921, and continued in that employment, as a common laborer, to the date he claimed he was injured. Plaintiff had lost the sight of his right eye previous to 1921. This fact was known to the defendant company. Plaintiff was a member of a crew of seven men whose duty it was to test gas mains for leaks. This required excavations to be made at certain points so as to expose the gas mains. Two men, who were called "tappers," would then drill holes in the main. As these holes were drilled the instrument would also cut threads in the main so a metal plug could be screwed therein to prevent the escape of gas. Thereafter two men would remove the plug and insert small rubber bags or balloons in the pipe, one on each side of the hole, and pump air into these rubber bags so as to prevent the gas from escaping and to hold the gas in that part of the main where a test was desired. The excavations were made about a block apart. At one end only one hole would be drilled, while at the other three holes were required. It was at this point that a meter would be set for the purpose of testing for leaks. Plaintiff, at the time of the alleged injury, was engaged in the work of placing rubber bags in a gas pipe. He testified that the pipe was cast iron and that when the hole was drilled a fine metal dust or drilling was left on the pipe, which he stated was supposed to have been dusted off by the tappers; that on this occasion the excavation had been made under a street car track, and therefore when he entered the excavation, which was about two feet in width, his body shut out most of the light; that after he removed the plug from the gas pipe the escaping gas blew the metal dust, which had not been cleaned off the pipe, into his face and eye; that he proceeded to place the rubber bags in the pipe and pump air into them; that the second bag burst and more drilling or dust was blown into his face, but not in his eye; that his eye began to pain him and he was compelled to call a fellow-workman to help replace the bag which had burst; that after the dust had been blown into his face he looked and noticed that it had not been brushed off the pipe. Plaintiff also testified that he informed the foreman of the job that something had blown in his eye and it was hurting. Thereafter plaintiff did not return to work. The next morning he was treated by the company doctor and a few days later was taken to a hospital where an operation was performed. He lost the sight of this eye and was, therefore, totally blind.

There was much evidence introduced which contradicted plaintiff's theory of how his eye was injured. That is there was substantial evidence that plaintiff was not injured at the time and place he testified; also evidence of statements made by plaintiff which were contrary to his evidence at the trial. Likewise, evidence given by plaintiff in a deposition was introduced at the trial, and that evidence contradicted that given at the trial. While it seems to us from the record that plaintiff failed to prove, by a preponderance of the evidence, that he sustained an injury to his eye in the manner claimed, yet there was substantial evidence to support his theory, and therefore we must, for the purpose of this case, consider plaintiff's evidence as true. Appellant earnestly insists that taking plaintiff's evidence as true it did not create any liability against appellant. The charges of negligence submitted to the jury by plaintiff's instructions were: First, failure of the defendant to provide plaintiff with a reasonably safe place to work, in that the metal dust or drilling was left...