Carney v. Anheuser-Busch Brewing Ass'n
| Decision Date | 01 October 1910 |
| Parties | JOHN CARNEY, Respondent, v. ANHEUSER-BUSCH BREWING ASSOCIATION, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
AFFIRMED.
Judgment affirmed.
A. E Watson for appellant.
(1) (a) Plaintiff assumed the risk of the accident and consequent injuries. (b) Plaintiff was guilty of contributory negligence. MacGrath v. Transit Co., 197 Mo. 97; Clancey v. Transit Co., 192 Mo. 615; Pohlman v Car & Foundry Co., 123 Mo.App. 219; Wendall v. Railroad, 100 Mo.App. 556; Fugler v. Bothe, 117 Mo. 475; Marshall v. Hay Press Co., 69 Mo.App. 256; Steinhauser v. Spraul, 127 Mo. 541; Nugent v. Milling Co., 131 Mo. 241; Roberts v. Telephone Co., 166 Mo. 370; Berry v. Kansas City, 128 App. 374; Fulwider v. Gas Light & Power Co., 216 Mo. 582; Courter v. Merc. Co., 118 S.W. 505; Coin v. Lounge Co., 121 S.W. 8. (2) The court erred in refusing defendant's instruction No. 2. Coin v. Lounge Co., 121 S.W. 8; Stegmann v. Gerber, 123 S.W. 1041.
C. J. Anderson for respondent.
(1) It is the duty of the master to keep his premises, necessary in the prosecution of his business, in a reasonably safe condition, and if he fails to do so he is liable to the servant for all injuries resulting to him from such defects. Wendler v. House Furnishing Co., 165 Mo. 527; Koerner v. St. Louis Car Co., 209 Mo. 141; Curtis v. McNair, 173 Mo. 270; Herdler v. Stove & Range Co., 136 Mo. 3. (2) When Carney was ordered (in addition to his regular duties and outside of his regular employment) to go to the top of the tower and make an inspection he had a right to presume that the place was reasonably safe. Wendler v. House Furn. Co., 165 Mo. 527; Curtis v. McNair, 173 Mo. 270; Herdler v. Buck's Stove & Range Co., 136 Mo. 3; Koerner v. St. Louis Car Co., 209 Mo. 141. (a) The doctrine of assumed risks does not apply to the case at bar. Garci v. Construction Co., 124 Mo.App. 709; Curtis v. McNair, 173 Mo. 270. (b) Plaintiff was not guilty of contributory negligence. This question was submitted to the jury by proper instructions and decided adversely to the defendant. Garci v. Construction Co., supra; Curtis v. McNair, 173 Mo. 270; Wendler v. House Furnishing Co., 165 Mo. 527. (3) The court properly refused to give defendant's instruction No. 2 to the jury. Coin v. Lounge Co., 121 S.W. 1; Garci v. Construction Co., supra; Wendler v. House Furnishing Co., supra.
This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
The injuries complained of were received as a result of falling through a hatchway on the top of a tower maintained by defendant in connection with its brewery. The tower in question is a square structure of concrete. It is said to be thirty feet in height, thirty-four feet square and used by defendant for the purpose of cooling water employed in manufacturing artificial ice at the brewery. Within the tower there are some large vats and it is to be inferred from the evidence that water, after being heated, is transmitted through pipes to the top of the tower, from whence it is dripped into the vats below for the purpose of cooling, but with this matter we are not concerned, except for the purpose of understanding the general situation. The top of the tower is covered with concrete and there is a concrete cornice on all four sides, which extends out about three feet from the tower. On all sides and at the extreme extensions of this cornice there is a concrete wall or coping, which rises to the height of about four and a half feet. It thus appears that the top of the tower consists of an open space about forty feet square, which is inclosed on the four sides by the coping referred to, four and a half feet high. This open space on the top of the tower is divided into four parts by two concrete walls which run crosswise from north to south and east to west about the center of the tower and they, too, are about four and a half feet high. In each of these four sections there are numerous pipes and coils of steam pipe, through which the heated water passes, and from which it is dripped to certain troughs below. There are eight valves in connection with the several steam pipes, which it seems are regulated at different times, and two of these are in each one of the four sections on top of the tower. At times it is necessary for an employee to go to the top of the tower and adjust or readjust the several valves mentioned. The only means of ingress and egress to and from the top of the tower is an iron ladder built on the north side of the tower, the top end of which passes through a hatchway in the concrete cornice above. One desiring to reach the top of the tower from below must ascend this ladder and pass through the hatchway twenty-one inches by twenty-eight inches in dimensions in the cornice. In other words, the hatchway is through the cornice from below to the floor of the tower above. At the time plaintiff received his injury, by falling through this hatchway, it was wholly unguarded and there were no signals, such as lights, indicating where it was located.
Plaintiff was in defendant's employ, his occupation being that of an oiler of machinery in the engine room, and he was entirely unacquainted with the top of the tower or the conditions which there obtained. Defendant's engineer, having charge of the engines, was plaintiff's immediate superior and directed him to go to the top of the tower for the purpose of adjusting the valves in connection with the steam pipes before referred to. It was in the month of December and after dark, the time being about seven o'clock in the evening. Besides, it was raining and the night was very dark. Plaintiff took an ordinary lantern with him, proceeding up the ladder and through the hatchway to perform the task as directed. After having reached the top of the tower, he passed over one of the division walls thereof, by means of certain steps constructed for the purpose, attended to the valves in one of the sections and wandered about among the coils of pipe and over the walls, to the end of looking after the other valves. He says in his testimony that the conditions, because of the rain and vapor and steam exuding from the pipes, was such as to obstruct the light from his lantern, so that he could see only about a foot away. Plaintiff says, too, that as he had never been on top of the tower before, he had no knowledge of the walls which divided the four sections; that is to say, he was under the impression there were but two sections, whereas there were four. It is to be inferred from his testimony that because of his unfamiliarity with the situation, the rain, darkness and exuding steam and vapor, he became confused as to his whereabouts while performing the task; for he could not see more than a foot away from his lantern in any direction. While thus engaged and in passing from one portion of the tower to another, he fell through the hatchway from whence he came upon the tower only five minutes before. As a result of the fall, he received severe and permanent injuries.
The petition alleges defendant was negligent in failing and omitting to provide either some kind of a guard about the hatchway or a light thereat by which it could be located, and further that it was negligent in sending plaintiff, an inexperienced person, to perform the task assigned on a dark night without instructions as to the dangerous condition of the hatchway. It may be said of the latter assignment of negligence that it seems to have been abandoned on the trial, for it was not referred to the jury in the instructions as a predicate of liability.
The court submitted the case to the jury as though defendant was remiss in its obligation to exercise ordinary care for the safety of its servant, if the jury believed an ordinarily prudent person would erect and maintain some sort of a barrier about the hatchway or would maintain a light or other warning signal thereat, and defendant's failure to do so operated proximately to plaintiff's injury while he was exercising ordinary care on his part. There is no complaint on appeal as to the instructions given but the argument is that in the circumstances of the case defendant was not negligent in omitting...
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