Brueggemann v. Carondelet Ice Mfg. & Fuel Co.

• Decision Date: 04 February 1913
• Citation: 153 S.W. 559
• Court: Missouri Court of Appeals
• Parties: BRUEGGEMANN v. CARONDELET ICE MFG. & FUEL CO.

153 S.W. 559

BRUEGGEMANN v. CARONDELET ICE MFG. & FUEL CO.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

MASTER AND SERVANT (§ 129)—LIABILITY FOR INJURIES—PROXIMATE CAUSE.

Where an employé, without negligence on his part, attempted to start a steam pump by means of a lever, and overbalanced himself and fell into an unguarded pit, sustaining injuries which he would not have received if the pit had been reasonably guarded, the failure to guard it was the proximate cause of his injuries.

Appeal from St. Louis Circuit Court; Wm. N. Kinsey, Judge.

Action by Henry Brueggemann against the Carondelet Ice Manufacturing & Fuel Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee and Wm. R. Gentry, all of St. Louis, for appellant. Chas. P. Comer and England & England, all of St. Louis, for respondent.

REYNOLDS, P. J.

This is an action for damages sustained by plaintiff from falling into a pit in the plant of defendant, appellant. It is alleged that there was an open pit in the room in which plaintiff was at work, that this pit was not surrounded by railings or other safeguards for the protection of employés, whose duty it was to work near it, the specific negligence and carelessness charged being failure to inclose the pit or otherwise safeguard it, and so failing to provide plaintiff, an employé of defendant, with a reasonably safe place in which to work. Damages are claimed in the sum of $7,500 for injuries sustained, which consisted of fracture of plaintiff's left arm just below the shoulder.

The answer is a general denial with a plea of contributory negligence, the contributory negligence charged being that plaintiff had gone into the room, alongside of which was this pit, without carrying with him a light, and without turning on the lights with which the place was equipped, which latter plea was put in issue by the reply.

The trial was before the court and to a jury. A verdict of $1,200 having been returned in favor of plaintiff, judgment following, defendant, filing its motion for a new trial and saving exceptions to that being overruled, duly perfected appeal to this court.

Plaintiff's account of the accident, and he was the only witness to it, was that while in the employ of defendant as a night watchman and acting under the direction of the engineer in charge of the plant, which was an ice manufacturing plant, he went through the tank room of the plant, intending to go to the ice room and get out some manufactured ice. In one corner of this tank room was a pump operated by steam. When steam was turned on, as was the case at the time of this accident, it was the duty of plaintiff to see that the pump operated. All that he had to do to put it in operation was to pull a little lever attached to it, if the pump was out of order or had stopped, whereupon the pump would start up and keep running as long as the pressure of steam was on. Alongside of this tank room in which the pump was located was an open pit five feet deep and four or five feet wide, unprovided with any railing or guard of any kind. The pump was set on the floor of the tank room about eight inches from the pit. On the night of the accident plaintiff, according to his testimony, was in the ice room, which is on the other side of this pit from the tank room, dealing out ice to customers. While he was in this ice room and not hearing the pump "knocking," he concluded it had stopped. Going out to examine it and walking along the floor of the tank room and along the side of the pit, he saw that the pump had stopped. He took hold of the lever attached to the pump, by which it is started, and jerked it. There was a full pressure of steam on and while this lever generally comes back after being pulled, on this occasion, as plaintiff testifies, in pulling it to start the pump he overbalanced himself and fell into the pit, being then about three inches from the edge of the pit. There were no electric lights in the place that night but plaintiff testified that he was carrying a lighted lantern with him at the time. The plant is in operation day and night, although it had not been running that day or night but was just about ready to start up again. Plaintiff testified that he fell down into this pit, right by the pump. He further testified that a railing or banister placed along this pit would not have interfered with it for the purposes for which it was intended but that there was no kind of partition there, nothing but the open pit. Plaintiff testified as to his injuries, which consisted, as before stated, of a broken arm; that he was fifty-six years old; that he was earning $2 a day at the time of his injury and had been employed by defendant off and on for six years; that since his injury he had not been able to do any work at all except for two days; had worked a little but had to quit as he could not stand it. This is practically all of his testimony.

Defendant, at the close of plaintiff's evidence and again at the close of all the testimony, interposed demurrers which were refused, defendant excepting.

At the request of plaintiff the court instructed the jury, among other things, that if they found that the pump in question was located within a short distance of the pit and that the proximity of the pit to the pump exposed anyone engaged in starting or stopping the pump to the danger of falling into the pit unless it was guarded by a rail or some other device that would obviate the danger of falling into...