Browning v. Kasten
| Decision Date | 12 April 1904 |
| Citation | 80 S.W. 354,107 Mo.App. 59 |
| Parties | BROWNING, Respondent, v. KASTEN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Circuit Court.--Hon. H. C. Riley, Judge.
Judgment affirmed.
Wilson Cramer for appellant.
(1) At the time the accident occurred plaintiff was not in the line of his duty, nor at his proper place, but at the request of Martin Schloss, a fellow workman, had voluntarily gone into the west kiln to do the work of Schloss during the latter's temporary absence, and is therefore not entitled to recover. Ryan v. Boiler Works, 68 Mo.App. 146. (2) But even if plaintiff had been rightfully in the west kiln, he knew that the walls were constructed of mud and bricks, without mortar, and consequently more or less unsafe and the leaning and cracked condition of the east wall was obvious and equally open to his inspection. In going in there to work plaintiff assumed the risk and can not recover. Watson v. Kansas & Texas Coal Co., 52 Mo.App. 366; Steinhauser v. Spraul, 127 Mo. 541; Epperson v Postal Tel. Cable Co., 155 Mo. 346.
W. H Miller for respondent.
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 brickyard 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's) 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 thirty-two feet long and twelve feet high. The part that fell was a segment twenty-four feet across and eight feet high; that is to say, the middle of the wall fell to within four feet of the ground and leaving about four 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's 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 him. But the plaintiff's testimony was that his view of the wall before he began work on it was obstructed by intervening objects and he did not notice it was in a dangerous state when he took Schloss's place. As setting brick in the kilns was not his usual duty and he had been about the west kiln for only a few moments before it fell, it is idle to say it so plainly appears he realized and voluntarily encountered the danger of working there as to call for a nonsuit, when the foreman and other men whose business it was to work there all the time continued to do so, under the belief that the wall would stand until strengthened by the fresh brick which were being set. The instruction granted for the...
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