Browning v. Kasten

• Decision Date: 12 April 1904
• Court: Missouri Court of Appeals
• Parties: BROWNING v. KASTEN.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 354

107 Mo. App. 59

BROWNING v. KASTEN.^*

St. Louis Court of Appeals. Missouri.

April 12, 1904.

INJURY TO EMPLOYÉ—ASSUMPTION OF RISK— CONTRIBUTORY NEGLIGENCE—AUTHORITY OF FOREMAN—PROXIMATE CAUSE.

1. One on whom a wall of a brick kiln fell a few minutes after he was put to work there setting bricks, which was not his usual duty, will not be held to have assumed the risk, or to have been negligent in working there, though the dangerous condition was more or less apparent, he not having noticed it, and the foreman and other men, whose duty it was to work there all the time, having continued to do so under the belief that the wall would stand till strengthened by the bricks that were being laid.

2. One who had authority as foreman in a brickyard when the proprietor was away will be held to have had such authority when he directed an employé to set bricks at a kiln, where he was injured by the falling of a wall thereof, though the proprietor was in the yard, he having been 100 yards away, behind another kiln.

3. The proximate cause of injury to an employé by the falling of a wall of a brick kiln was not the foreman's direction to him to work there, but the insecure condition of the wall, of which the proprietor as well as the foreman had knowledge.

Appeal from Circuit Court, Cape Girardeau County; H. C. Riley, Judge.

Action by V. W. Browning against Rudolph Kasten. Judgment for plaintiff. Defendant appeals. Affirmed.

Wilson Cramer, for appellant. W. H. Miller, for respondent.

GOODE, J.

Plaintiff was hurt by part of a wall of a brick kiln falling on him, and sued the defendant, who is the owner of the kiln, for the consequent damages. There were two kilns on the yard, denominated the "east" and "west" kilns. Plaintiff was injured by the fall of the east wall of the west kiln. He had been employed about the brick-yard five or six weeks, and his usual duty was running an engine; but when the engine was idle other tasks were assigned to him. On the day of the accident he had been at work daubing the outside of the kilns with mud, and shortly prior to it was working on the east kiln. During the afternoon Martin Schloss, who was foreman of the yard, asked the plaintiff to take his (Schloss') place at the west kiln while he transacted some business with a man who had called to see him. In compliance with that request or order, plaintiff began to set brick along the east wall of the west kiln. He had been doing this work for a few moments when Schloss returned, said the bricks were not set right, and that he would show plaintiff how to set them. While Schloss was showing him, the wall fell, and broke his leg. The side of the kiln was 32 feet long and 12 feet high. The part that fell was a segment 24 feet across and 8 feet high; that is to say, the middle of the wall fell to within 4 feet of the ground, and leaving about 4 feet standing at either end. The wall had been leaning outwardly for some time, and Schloss had been warned that it was dangerous. Cracks had appeared in it the morning of the day of the accident, and Schloss' attention was called to them. He said the wall would stand until he got new bricks laid against it, and then they would hold it. There is testimony that Kasten's attention had been attracted by the bad condition of the wall, and that after the accident he said he had intended to prop it, but forgot to do so. Plaintiff got judgment, and defendant appealed.

The contention is advanced that plaintiff assumed the risk of the wall falling when he went to work on the west kiln, because its tottering and dangerous condition was apparent to the eye; that he had been previously working a short distance away, and the wall was visible to...