Chandler v. Kansas City, Missouri, Gas Co.
| Decision Date | 18 March 1903 |
| Citation | 73 S.W. 502,174 Mo. 321 |
| Parties | CHANDLER v. KANSAS CITY MISSOURI GAS COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.
Reversed.
Gage Ladd & Small for appellant.
(1) A master is not bound to furnish an absolutely safe place for his servant to work, but only to exercise reasonable care to do so. He is, therefore, not an insurer of his servant against defects in the place where he works, nor liable as such, but is only liable, it being in safe condition in the first place, for negligently permitting it to become defective, or negligently failing to repair it. Krampe v Brewing Co., 59 Mo.App. 277; Devlin v Railroad, 87 Mo. 545; Higgins v. Railroad, 43 Mo.App. 547; Gutridge v. Railroad, 105 Mo. 529; Siela v. Railroad, 82 Mo. 430; Covey v. Railroad, 86 Mo. 635; O'Donnell v. Baum, 38 Mo.App. 245; Blanton v. Dold, 109 Mo. 64; Brown v. Land & Lumber Co., 65 Mo.App. 162; Marshall v. Hay Press Co., 69 Mo.App. 256; Friel v. Railroad, 115 Mo. 503. (2) The evidence of both plaintiff and defendant shows affirmatively that this cinder track was in perfectly safe condition until Knight made this excavation in it, and that no one connected with the defendant -- much less any of its officers, superintendents or foremen -- knew anything about this excavation into which the plaintiff fell and was injured, until after the accident, and the same having been made after sunset, just about dark on a very cloudy, foggy night, and only an hour and a half before plaintiff's injury, in an out of the way place -- a place outside the fence enclosing defendant's works and across the street and railroad tracks therefrom and unfrequented by anyone except the plaintiff -- there was no evidence that defendant should, by the exercise of ordinary care, have discovered the existence of the pit prior to the accident, and the court so instructed the jury. There was, therefore, no evidence of negligence on defendant's part, and no case to go to the jury, and defendant's demurrers to the evidence should have been given. Burnes v. Railroad, 129 Mo. 41; Goodrich v. Railroad, 152 Mo. 223; Railroad v. Swartz, 48 P. 954; Raymond v. Keseberg, 64 N.W. 861; Frassi v. McDonald, 55 P. 139; Clapp v. LaGrill, 52 S.W. 134, 103 Tenn. 164; Clough v. Hoffman, 132 Pa. St. 626; Harrison v. Collins, 86 Pa. St. 153.
Scarritt, Griffith & Jones for respondent.
Plaintiff's first instruction correctly states the law concerning the obligation of defendant to plaintiff under the circumstances of this case. This instruction required the jury to find, precedent to a verdict for the plaintiff, that defendant authorized Frank Knight to take and carry away cinders from the vicinity of the cinder track, and that in giving such authority defendant knew, or, as a reasonably careful and prudent person, might have known, that in so doing he would be liable to excavate near or under the cinder track and render plaintiff's pathway used for pushing cinder cars along that track unsafe and dangerous. The fundamental obligation, the violation of which is the foundation of this action, is that the employer should furnish and maintain a reasonably safe place for his servant while at work. This duty imposed by law is a positive continuing and personal duty. 20 Am. and Eng. Ency. Law (2 Ed.), p. 55; S. P. Co. v. Lafferty, 57 F. 539; Golden v. City of Clinton, 54 Mo.App. 100; Smith v. St. Joseph, 42 Mo.App. 392; Birmingham v. McCrary, 84 Ala. 469, 4 So. 630; Stephens v. City of Macon, 83 Mo. 345; 2 Dill. Mun. Corp. (3 Ed.), p. 1025; District of Columbia v. Woodbury, 136 U.S. 450; Hoyer v. Tonawanda, 79 Hun 39; Railroad v. Mayes, 49 Ga. 355; Bridge Co. v. Steinbrock, 61 Oh. St. 215, 76 Am. St. 375; St. Paul v. Seitz, 3 Minn. 297, 74 Am. Dec. 753.
Action for damages for personal injuries sustained by plaintiff while in the service of defendant and which plaintiff alleges were the result of defendant's negligence.
Defendant is a manufacturer of illuminating gas, having several factories in Kansas City near the intersection of Front and Harrison streets, one of which is on the south side of Front street and another one on the north side. There is an ashpit in the basement of the latter, into which cinders and ashes are deposited and thence removed in a car up an incline to a point about thirty-five feet east of the factory, from which point the car is pushed by hand down an incline to a track along a level, on which it is further pushed by hand eastward eighty or a hundred feet, where the ashes and cinders are dumped, and the car is then returned to the ashpit for another load. The business was so extensive that the ashpit had to be cleaned out three times a day, and five carloads containing a cubic yard each were taken out at each cleaning. The cinders were being used by the defendant to raise the surface of the ground in front of the factory. The track along which the car was pushed was made of iron rails laid on longitudinal sills elevated four to six feet above the natural surface of the ground, but at the time of this accident the process of filling had progressed so far that the space under the track and on both sides to a considerable distance north and south had been filled with cinders and leveled. The process of filling was being extended eastward and when the ground at the end of the track was filled and leveled north and south as far as desired, the track would be extended further east to continue the process. The plan of the defendant was to use the cinders from this factory for this filling purpose. But the factory south of Front street produced cinders in considerable quantity, also, which were not so convenient to dispose of, and those cinders the defendant sold to concerns in the vicinity who hauled them away in wagons and used them for filling up low grounds of their own. It sometimes occurred that there was not enough cinder output from this south factory to meet the demand, and when that was the case the defendant allowed the wagons to take cinders from the north side. To do this the usual course was for the wagons to go to the east end of the track above described and take the cinders from the dump.
Among the concerns hauling cinders from these gas works was a lumber company whose driver was named Knight. He had been hauling there a considerable time, usually getting his loads from the south factory, but also when there were no cinders there, getting them from this dump. He was so engaged on December 27, 1899; he had hauled one load from the dump in the afternoon of that day, and returned about five o'clock for another. He loaded his wagon at the dump, but he experienced some difficulty in hauling it from that point, and thereupon he threw out the load he had taken, and drove his empty wagon west along the north side of the track about sixty feet from the dump, and there stopped and filled his wagon with cinders which he dug out from the side and under the track, making a hole or pit under the track about four feet deep and six feet long. It was about half past five o'clock when he did this and it was just about dark. No one saw him do it. He drove away in the dark, leaving the hole as he had dug it.
Plaintiff was in the service of the defendant as a common laborer. Cleaning out the ashpit and pushing and dumping that cinder car were not his regular duties, but he was frequently called on to do it and was familiar with the work. He had made several trips with the car on the day in question, when he was ordered to another part of the works on some duty and was to return to the cinder pit at six o'clock to clean it out. He did so, and passing along the south side, pushed a car of cinders out to the end of the track and dumped it, then returning, walking in the track, pushing the car, he fell into the hole which Knight, the driver of the lumber company, had recently made as above mentioned, and received severe injuries.
Knight, as a witness for plaintiff, testified that the orders from the defendant's man to him were to haul cinders from the south side, but when there were no cinders there, for accommodation, he could go on the north side and get them, and he did so, and as did also other haulers, all of whom usually went to the end of the dump for their loads. The witness, in undertaking to tell what orders he had from the defendant's superintendent as to where he could take cinders from, used this expression, "We could get them where we pleased, and all we had to do was to come to the office and pay for them." But on the further examination he said that no one pointed out to him where he was to get the cinders except that he was told he could go over to the north side and get them.
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