Doody v. California Woolen Mills Co.

• Decision Date: 30 July 1925
• Docket Number: No. 25984.,25984.
• Citation: 274 S.W. 692
• Parties: DOODY v. CALIFORNIA WOOLEN MILLS CO.
• Court: Missouri Supreme Court

274 S.W. 692

DOODY v. CALIFORNIA WOOLEN MILLS CO.

No. 25984.

Supreme Court of Missouri, Division No. 1.

July 30, 1925.

Appeal from Circuit Court, Gasconade County; R. A. Breuer, Judge.

Action by Patrick J. Doody against the California Woolen Mills Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

R. M. Embry and S. C. Gill, both of California, Mo., and Robert Walker, of Hermann, for appellant.

George H. Kelly, William Buchholz, B. Kimbrell, and Martin J. O'Donnell, all of Kansas City, for respondent.

SEDDON, C.

This action to recover damages for personal injuries has had a long and tortuous career, having for nine years past run the gamut of the several courts of this state, both trial and appellate. The suit was commenced on April 8, 1916, in the circuit court of Moniteau county, from whence it went on change of venue to the circuit court of Gasconade county. It was thrice tried before juries in the latter circuit court and each time the jury returned a verdict for plaintiff, first for $10,000, then for $6,000, and the last time for $8,000, from which latter verdict and the judgment thereon this appeal lies. The appeal from the first judgment came to this court, where the judgment below was reversed and the cause remanded because of error in refusing defendant's requested instruction. Doody v. Woolen Mills Co., 216 S. W. 531. Upon a retrial, resulting in a second verdict and judgment for plaintiff, defendant appealed to the Kansas City Court of Appeals, where that judgment was reversed and the cause remanded for error in giving plaintiff's instruction. Doody v. Woolen Mills Co., 230 S. W. 377.

Following the second appeal, plaintiff filed an amended petition on May 16, 1923, upon which the last trial was, had. The amended petition, in substance, charges that on September 14, 1914, plaintiff was in the employ of defendant as a common laborer at its plant in California, Mo.; that one of the buildings of said plant was used by defendant for many years as a storeroom for a deadly and dangerous poison and acid, known as sulphuric acid; that the floor of said building was constructed of wood and on said date, and for a long time prior thereto, said floor was not in a reasonably safe condition so as to enable plaintiff and his fellow workman to perform the task assigned to them on said date with reasonable safety to themselves, in that said floor was old, worn, thin, and eaten with acids so that there were numerous holes in said floor; that on said day plaintiff, in obedience to the order of defendant's superintendent and foreman in charge, was engaged with a fellow workman in moving and attempting to move a carboy containing sulphuric acid from said storeroom and, while so engaged, one of the feet and legs of said fellow workman slipped into and through one of said holes in the floor of said building, thereby jarring and turning said carboy so that a large quantity of said sulphuric acid was thrown and splashed from said carboy upon plaintiff, causing the grievous injuries from which plaintiff still suffers. The specific acts of negligence charged in the petition are these:

"That defendant, by its said superintendent and foreman in charge of plaintiff and his said fellow workman, and in charge and control of said manufacturing plant and building, negligently and carelessly ordered the plaintiff and his said fellow workman to take the said carboy containing said deadly poison and acid from the place in which it was stored in said building to another part of said plant and to work at said task in a place which was not reasonably safe in the said building, which said place was the said floor and a passageway thereon close to which said carboy was placed, in which passageway and floor was one of said holes, the existence of which was known to said defendant and its said foreman and superintendent before plaintiff was ordered to work at said task in said place, or by the exercise of reasonable care could have been known to them before plaintiff and his said fellow workman were ordered to work at said task and before plaintiff was injured; that said defendant knew, or by the exercise of ordinary care could have known, that the said place, by reason of the existence of said hole, was not in a reasonably safe condition so as to enable the plaintiff to do the said work with reasonable safety to himself before plaintiff was ordered to engage in said work.

"Plaintiff further states that defendant was negligent in that, notwithstanding it knew, or by the exercise of ordinary care could have known, that said sulphuric acid was a very dangerous and deadly substance and a deadly poison and that the weight of the said carboy containing said deadly poison was such, and the box in which it was placed was so constructed, that the workman engaged in handling same were reasonably certain to be injured by the contents of said carboy splashing upon them unless the said defendant exercised reasonable care for the safety of said plaintiff and said workman commensurate with the great danger incident to the handling of said dangerous and deadly substance, yet defendant negligently failed to cause a sufficient cover to be placed upon, or a cork to be securely placed in, said carboy, and negligently failed to provide a reasonably safe place for said plaintiff and his fellow workman to handle the said dangerous and deadly substance in said carboy, and that, when plaintiff and his said fellow workman attempted to move and lift said carboy in obedience to the order of defendant's superintendent and foreman as aforesaid, one of the legs of plaintiff's fellow workman slipped into said hole and thereby caused the contents of said carboy to be thrown upon and to splash upon plaintiff and to injure him as aforesaid; that defendant and its said superintendent and foreman knew, or by the exercise of ordinary care could have known, that said place in which plaintiff was ordered to work was not reasonably safe under the circumstances, and defendant could, by the exercise of ordinary care, have made said place a reasonably safe place in which to work by repairing the hole aforementioned before plaintiff's injury, but that defendant negligently failed to do so; that defendant knew, or by the exercise of ordinary care could have known, that it was dangerous to move said carboy under the circumstances, and that defendant could have prevented the splashing of said sulphuric acid upon plaintiff by causing said carboy to be securely covered or corked, but that defendant carelessly and negligently failed so to do, and that as a direct result of said negligence plaintiff sustained the following injuries."

The petition prays damages in the sum of $75,000. The answer is a general denial with the following special defenses:

"Further answering, defendant says that the plaintiff's injuries, if any he received, at the time and place stated in his said first amended petition were caused solely by, and are directly due to, plaintiff's own carelessness and negligence in moving and handling the carboy mentioned in his amended petition, and all of which conduct of plaintiff contributed directly to his injury, if any, and that the injuries, if any, to the plaintiff were due to risks assumed by plaintiff in his employment and work for defendant, and that plaintiff at the time of and during his employment by defendant well knew, or by the exercise of ordinary care could have known, the condition of the buildings of defendant, California Woolen Mills Company, and the condition of the floors in said buildings."

The reply is a general denial. The facts, as developed at the first trial, are quite fully and fairly stated in our opinion upon the first appeal (Doody v. Woolen Mills Co., 216 S. W. 531), reference to which is here made. Without reiterating the statement of facts there made, we will herein merely summarize the salient facts applicable to the issues below, with such additional facts as appear for the first time from the evidence adduced upon the last trial.

Plaintiff, prior to entering defendant's employment, had been a railroad telegraph operator for 25 years or more. He had been in defendant's employment as a laborer in its woolen mills in California, Mo., for 2 years or over prior to his injuries. His eyesight was totally destroyed and he was otherwise severely and permanently injured by being burned with sulphuric acid about 8 or 8:30 o'clock on the morning of September 14, 1914, a short time after beginning his daily labor. His principal work was shearing and measuring cloth, and sometimes inspecting the cloth, attending to the shipments and making out bills of lading. Defendant's manufacturing plant consisted of a new building (so called), in which was defendant's mill, and an old building or warehouse, some 40 or 50 yards distant from the new building, in which was stored certain carboys of various acids used in cleansing or "carbonizing" the vegetable matter from the wool. Plaintiff usually worked in the basement, or finishing department, of the new building. Plaintiff's version of the casualty may best be told in his own words. He testified:

"While at the desk on the morning of September 14, 1914, Mr. Morganson (defendant's superintendent) came up where I was, and he says, `Pat, let's go out to the old warehouse.' And it was my work to check up the wool when it comes in, the shipments of the wool from the east, to get the weight and the lot numbers. So we went past through the east room and went back into the large wareroom and weighed up the wool. I got the records of the sacks of wool, the lot numbers and the weights. He and I put them on the scales and I got the records. I went in to weigh up the wool and get the lot numbers, and as we came back there was nobody to help Waller bring that (carboy) in except Mr. Morganson and myself, and he (Morganson) asked me as we come out of the warehouse room in this passageway; he...