Dakan v. G. W. Chase & Son Mercantile Co.

• Decision Date: 30 May 1906
• Citation: 197 Mo. 238,94 S.W. 944
• Parties: DAKAN v. G. W. CHASE & SON MERCANTILE CO.
• Court: Missouri Supreme Court

94 S.W. 944

197 Mo. 238

DAKAN v. G. W. CHASE & SON MERCANTILE CO.

Supreme Court of Missouri, Division No. 1.

May 30, 1906.

1. MASTER AND SERVANT—INJURIES TO SERVANT —NEGLIGENCE OF MASTER—EVIDENCE—QUESTIONS FOR JURY.

In an action by a servant for personal injuries caused by a fire in a factory where plaintiff was employed, evidence held to justify submission to the jury of the questions whether the fire was attributable to defendant's negligence and whether defendant was negligent in failing to furnish sufficient means for escape.

2. SAME—FIRE ESCAPES—STATUTORY REQUIREMENTS.

Rev. St. 1899, § 10,078, providing that rooms or places where persons are employed shall have a sufficient number of doors, stairways, and fire escapes for the ready egress of the maximum number of employés, and Acts 1901, p. 219, requiring the proprietor of the establishment to provide fire escapes and stair cases, and to have at least one fire escape for each 20 to 50 persons, do not relieve the master from his common-law duty to exercise ordinary care to provide means of escape in case of fire, and if he has not discharged that duty he is liable for resulting injuries, though he has complied with the statute.

3. APPEAL—HARMLESS ERROR—INSTRUCTIONS.

In an action for injuries to a servant, caused by a fire claimed to have been set by a defective electric light in the factory where plaintiff was employed, an instruction that if a superintendent, having general charge of the laborers in the portion of the factory where the light was situated, knew of the defect and neglected to have it repaired, his negligence was that of the master, while erroneous, was not cause for reversal in view of the fact that a machinist, whose duty it was to look after the lights, did know of the defect for some time before the fire and failed to repair it.

4. MASTER AND SERVANT—INJURIES TO SERVANT — NEGLIGENCE OF MASTER — IMPUTED NEGLIGENCE.

Where plaintiff was injured by the burning of a building in which she was employed, and there was evidence that, if the night watchman employed in the building had been diligent, he could have discovered the fire and given warning in time to have prevented the injury, the negligence of the watchman, if any, was imputable to the master.

5. APPEAL — PREJUDICIAL ERROR — INSTRUCTIONS —APPLICABILITY TO CASE.

In an action for personal injuries, caused by the burning of a factory, in which there was no evidence that an assistant superintendent of the factory was negligent, an instruction that if he discovered the fire, or by the exercise of ordinary care might have discovered it, in time to have warned plaintiff, and failed to do so, his negligence was chargeable to defendant, was reversible error, though it did not in terms authorize the finding for plaintiff if the assistant superintendent was negligent.

6. MASTER AND SERVANT—INJURIES TO SERVANT—INSTRUCTIONS.

Where, in an action by a servant for personal injuries caused by the burning of a factory, it was claimed that defendant's negligence was the cause of the origin of the fire, and also that defendant was negligent in failing to provide sufficient means for escape, an instruction that defendant was not liable "on account of the fire" unless it was caused by the actual negligence of defendant was improper in form, and should have stated that defendant was not liable "on account of the origin of the fire" unless it originated because of defendant's negligence.

7. SAME—PROOF OF NEGLIGENCE.

In an action by a servant for personal injuries, an instruction that the negligence must be a reasonable, logical, and necessary conclusion from the facts and circumstances shown by the evidence, is erroneous, because requiring plaintiff to prove negligence by more than a preponderance of the evidence.

8. SAME — ASSUMPTION OF RISK — PLEADING AND PROOF.

In an action by a servant for personal injuries, the defendant may, under a general denial, prove facts tending to show an assumption of risk.

9. SAME—INSTRUCTIONS.

In an action by a servant for personal injuries caused by the burning of the factory wherein she was employed, in which it was claimed that defendant was negligent in not furnishing sufficient means of exit and fire escapes, an instruction that defendant had a right to place its partitions, etc., as it desired to operate its business in any manner it saw fit, and that the act of a servant in continuing employment in full view of the arrangement constituted an assumption of all the perils incident to the employment, was erroneous because disregarding the question whether plaintiff might have failed to know or appreciate the danger, or have believed that she could have proceeded with work with reasonable expectation of safety.

10. SAME—FIRE ESCAPES — SUFFICIENCY — INSTRUCTIONS.

In an action by a servant for personal injuries, caused by a fire in defendant's factory, in which plaintiff alleged that defendant was negligent in failing to provide sufficient means for escape in case of fire, and in which the evidence showed that there was a sufficient fire escape at one end of the building which, however, plaintiff and other employés working in the other end of the building could not reach after the fire started, an instruction that, if the fire escape was a sufficient means for escape, defendant was not liable, was erroneous.

11. EVIDENCE—DANGER OF FIRE—EXPERT EVIDENCE.

In an action by a servant for personal injuries, caused by the burning of the factory in which plaintiff was employed, and in which the evidence fully showed the condition of the building and of the surroundings, expert evidence that, from a fire insurance standpoint, the building was classed as especially hazardous, was incompetent.

12. PLEADING—WAIVER OF OBJECTIONS.

Alleged error in overruling motions to strike out, to make more definite, and to elect, are waived by subsequently pleading to the merits and going to trial.

Appeal from Circuit Court, Buchanan County; A. D. Burnes, Judge.

Action by Anna May Dakan against G. W. Chase & Son Mercantile Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Thos. F. Ryan and Rusk & Stringfellow, for appellant. James W. Boyd, for respondent.

VALLIANT, J.

Defendant corporation, at the times hereinafter mentioned, was engaged in the business of manufacturing candy in the city of St. Joseph. The plaintiff was an employé in its service. Defendant's factory was destroyed by fire on December 23, 1902. At the time the fire occurred the plaintiff and several other young women employés were in a room on the third floor of the building, and, to escape death from the flames, they jumped out of a window which was 30 or 35 feet from the ground. The plaintiff, by the fall, sustained very severe injuries. She brings this suit to recover damages for her injuries, alleging that they were the result of the negligence of the defendant, her employer. She recovered a judgment for $5,000, and the defendant appealed.

The buildings, in which defendant conducted its business, fronted east on Second street, and extended back west about 140 feet to an alley. There were three buildings in the group which are referred to in the record as the north, the middle, and the south building. The north building was separated from the one in the middle by a solid partition brick wall; we have nothing to do with that building, it is only to the middle and south buildings that our attention is directed. The employés entered the factory by the front door in the south building. There were usually 150 or more employés, the most of whom were girls from 15 to 19 years of age, about 40 of whom usually worked on the second and third floors. The petition is quite lengthy, it is descriptive of the buildings, their contents and the mode of conducting the business; it charges negligence in several particulars, the combustible character of the internal partitions, the lack of sufficient exits, doors, stairways, fire escapes, etc., the condition of the electric lights, the boiler, furnaces, kettles, pipes, gas jets, electric wires, electric lamps, lack of sufficient watching to discover the fire, lack of care to discover it and to give alarm, etc. In appellant's printed abstract it is said that the defendant filed a motion to strike out parts of the amended petition, which was overruled and exception taken and preserved in a term bill of exceptions, and what purports to be a copy of that motion is set out in the abstract, but no such term bill of exceptions is in this record, and that motion is not in the bill of exceptions now before us. It is also said that there was a motion to make the amended petition more definite and certain, which was also overruled, and what purports to be a copy of that motion is set out in the abstract, but it does not appear in the bill of exceptions. And the same is true of an alleged motion to require the plaintiff to elect upon which of, so-called, two causes of action she will stand. After the motions were overruled, defendant answered by general denial, and a plea of contributory negligence. There is also in the answer what appellant calls a plea of assumption of risk.

The evidence in the case is very voluminous; it was necessarily so, because, for an intelligent understanding of the case, a full description of the buildings, of their contents, and of the mode of conducting the business was necessary. It is sufficient, however, for our present purpose to say that the evidence on the part of the plaintiff very clearly shows that the defendant was engaged in a business very hazardous on account of its liability to fire. From the basement to the third story the conditions were full of danger of fire. Whilst the partition wall between the south and the middle buildings was of brick with a door through which to pass from one to the other on each floor, yet the inner partition walls making separate rooms for the various divisions of the work were of...