Cunningham v. Chicago, Burlington & Quincy Ry. Co.
| Decision Date | 15 May 1911 |
| Citation | 137 S.W. 600,156 Mo.App. 617 |
| Parties | EDWARD CUNNINGHAM, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. A. Masman, Judge.
Judgment affirmed.
Culver Phillip & Spencer for appellant.
Charles C. Crow and John S. Boyer for respondent.
(1) The evidence clearly shows that to handle a substance containing twenty-eight per cent of carbolic acid is dangerous to the human body, and especially to the eye; and respondent being ignorant of what the substance contained, and appellant having actual knowledge thereof, and failing to warn respondent and notify him of what the substance contained and the danger in handling it, the demurrer to the evidence was properly overruled. Reickert v. Packing Co., 136 Mo.App. 565; Omans v. Packing Co., 132 S.W. 283; Leine v. Contracting Co., 134 Mo.App. 557-563; Czernicke v. Ehrlich, 212 Mo. 386. (2) Instruction No. 1 given at the request of plaintiff was correct, because it required the jury to find every fact necessary to render appellant liable, and then instructed the jury to find for plaintiff, if it found such facts to be true. The facts stated in the instruction which the jury were required to find, if the finding should be for plaintiff, rendered the defendant clearly negligent as a matter of law, and the form of this instruction has been approved by many Missouri decisions. Tyler v. Hall, 106 Mo. 313; Duerst v Stamping Co., 163 Mo. 607; Hinzeman v. Ry. Co., 182 Mo. 611; Kimbel v. Ry. Co., 108 Mo.App. 78; Summers v. Ry. Co., 108 Mo.App. 319. Instruction No. 6 correctly states the measure of damage and requires the jury to find all of the elements of damage stated therein from the evidence in the case, and no intelligent layman could understand the instruction otherwise. The instruction does not authorize the jury to award respondent damages for loss of time or wages, although without objection on the part of appellant's testimony authorizing recovery for loss of wages was introduced by respondent.
Plaintiff was an employee of defendant, engaged in handling railway ties, and at the particular instance in which this controversy had its origin, he was in charge of a foreman and engaged in unloading ties from a car. His eyes became poisoned in the manner herein stated and he brought this action for damages. He recovered judgment in the trial court.
It appears that defendant, in order to prolong the service of its ties, put them through a preparatory process by offering a "liquid emulsion" into them by hydraulic pressure where it would be absorbed. There was evidence in defendant's behalf tending to show that this liquid consisted of twenty-three per cent creosote and seventy-three per cent of a zinc chloride solution. It is said by defendant that "practically all of the creosote is forced into the wood, all the superfluities adhering to the outside of the tie being removed by a vacuum process." By some means, not necessary to say, the compound produced a certain portion or per cent of carbolic acid; defendant says five per cent, and plaintiff twenty-eight per cent. There was evidence tending to support each theory. At all events, there was a substance like pitch or tar that came upon the outside of the ties, which would adhere to the hands of those who touched it.
Plaintiff was wearing cotton gloves while he handled the ties, and as it was warm, would perspire when at work. While at work, he ran his hand over his face, or, as he expressed it, "I wiped my hand across my eyes that way." (Illustrating). "I did it to wipe the sweat off." When he did this, he got some of the substance into his eyes which had adhered to his gloves from the ties, and they were poisoned to such degree as to interfere with his sight and do him great injury.
It was shown that plaintiff was a laborer or ordinary intelligence and 39 years old. But he was not a man of scientific attainments, and it was not shown that he knew that the substances with which the ties had been treated were poisonous. In such circumstances it was the duty of the master to inform him of the danger. "One of the recognized duties of the master is not to expose an inexperienced servant at whose hands he requires a dangerous service, without giving him warning." [Deeds v. Ry. Co. (not yet reported); Hysell v. Swift & Co., 78 Mo.App. 39; 2 Bailey's Personal Injury, secs. 2664-2666.] We decided in a case not yet officially reported, that where a master exposed his servant to the danger of a flying chipping from a block of caustic soda, a chip striking him in the eye and burning it, that the servant would not be presumed to know of the dangerous properties of the soda and the master was liable. [Omans v. Hammond Packing Co., 132 S.W. 283.] And in Reickert v. Packing Co., 136 Mo.App. 565, 118 S.W. 525, we held it to be the duty of the master to inform the uninformed servant of the danger from "a steam caustic solution," which injured his bare feet while engaged at work.
But it is said that the defendant could not reasonably be required to expect that an injury would come to plaintiff through adherence of the poison to his glove and thence be communicated to his eye. In Hysell v. Swift...
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