Cameron v. B. Roth Tool Co.

• Decision Date: 15 November 1904
• Citation: 108 Mo. App. 265,83 S.W. 279
• Parties: CAMERON v. B. ROTH TOOL CO.
• Court: Missouri Court of Appeals

83 S.W. 279

108 Mo. App. 265

CAMERON v. B. ROTH TOOL CO.

St. Louis Court of Appeals. Missouri.

November 15, 1904.

MASTER AND SERVANT — INJURIES TO SERVANT — EVIDENCE — INSTRUCTIONS — ASSUMED FACTS.

1. Where plaintiff was injured by the explosion of a tube in a heating furnace, and charged negligence, in that the tube, containing dangerous materials, was placed in such furnace, that the evidence showed that the furnace contained a very hot fire, and that the ingredients in the tube were not in themselves explosive, but that the explosion was caused by the absence of vents in the tube, did not constitute a material variance.

2. Where plaintiff was injured by the explosion of a tube while it was being heated in a furnace, and it was disclosed that neither prior nor subsequent to the catastrophe were defendant's premises made the source of another similar experiment, it was not error to refuse to permit defendant's witness to state how frequently the tube and material therein had been employed by him.

3. In an action for injuries to a servant by the explosion of a tube, evidence that defendant's witness conducting an experiment in the premises had given no warning to plaintiff or other employés of the perils of the work in which witness was engaging was admissible.

4. Where plaintiff was injured by the explosion of a tube while being heated in defendant's furnace in the course of certain experiments conducted by H., who was neither an officer nor an employé of defendant, an instruction assuming that H. was on defendant's premises by invitation, express or implied, was not error.

5. It is not error to refuse requested instructions which, so far as correct, were embraced in the charge given.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by James M. Cameron against the B. Roth Tool Company. A judgment was rendered in favor of plaintiff, and defendant appeals. Affirmed.

Ed. L. Gottschalk, for appellant. Richard F. Ralph, for respondent.

Statement.

REYBURN, J.

In this action for personal injuries, plaintiff, in his petition, set forth his employment by defendant, and charged violation of the duty imposed on the latter to provide a reasonably safe place in which to work, and reasonably safe appliances and tools with which to perform the work; making specific assignments of negligence that about 2 o'clock p. m. April 7, 1903, while plaintiff was in performance of his duties as an employé of defendant in its tool and machine shop, under the orders and directions of defendant, and while in exercise of reasonable and ordinary care on his part, defendant, through its servants and persons working in such manufacturing establishment, with knowledge, consent, and permission of defendant, and under its direction, negligently and carelessly constructed, and caused and permitted to be constructed, a large metal tube, in a negligent and careless manner, and negligently and carelessly caused and permitted same to be filled with various metals and materials of explosive and dangerous nature, and carelessly and negligently caused and permitted such metal tube and contents to be negligently and carelessly placed in a large heating furnace in defendant's manufacturing establishment, by reason whereof such metal tube and contents were negligently caused to, and did, explode with great force and violence, thereby causing large pieces of such metal tube and its contents, and large pieces of the door and other parts of the furnace in which it was so negligently placed, to be hurled with great force and violence against plaintiff, knocking him down and producing serious and probably permanent injuries, as detailed. In defense, defendant made general denial, and affirmatively pleaded that, if the plaintiff was injured as alleged, such injury was caused by plaintiff's negligence in improperly heating the furnace, and placing in such furnace the metal tube referred to in the petition, and alleged to have exploded. A reply denying the averments of the answer perfected the issues.

The testimony evinced that plai...