Downey v. Kansas City Gas Co.
| Decision Date | 18 February 1935 |
| Docket Number | 18105 |
| Citation | 79 S.W.2d 1063 |
| Parties | DOWNEY v. KANSAS CITY GAS CO. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.
“ Not to be published in State Reports.”
Action by Robert R. Downey against the Kansas City Gas Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Charles H. Mayer, of St. Joseph, and Charles M. Miller, of Kansas City, for appellant.
Harold E. Neibling and Lon J. Levvis (of Neibling & Levvis), both of Kansas City, for respondent.
Plaintiff, an employee of the defendant as a "pipe fitter’s helper," brought suit against defendant for an injury to said employee’s eye. Defendant is the "Gas Company" of Kansas City, Mo., a corporation engaged in selling and distributing gas to the public for various uses and in selling and installing gasburning appliances in and about Kansas City, Mo. The suit is a common-law action to recover damages for the injury alleged to have been caused by defendant’s negligence. Plaintiff obtained a verdict of $1,500, and, from a judgment rendered thereon, defendant appealed.
After alleging that plaintiff, in August, 1929, began working for defendant as a pipe fitter’s helper, and that as such it was his duty to help with the installing of hot water heaters on the premises of persons to whom defendant was selling said appliances and his duty to do such work as defendant’s superiors over him might order or direct; and that, while performing such duties, his eyes became irritated, sore, poisoned, and diseased as a direct result of the conditions of his said occupation and of the negligence of defendant and its agents and servants, as hereinafter set out; and, as a direct result thereof, he was permanently injured as hereinafter set out, the first amended petition then went on to allege and state:
That much of the time in said employment plaintiff was "required by defendant to do his said work in basements and other parts of old residences and other buildings; that he was required, as part of said work, to cut and clean out holes and openings in old flues and chimneys; that there were soot, ashes, lye, potash, creosote, acids, and other chemicals and chemical combinations in and about many of said flues and chimneys, and said substances were likely to be very injurious to plaintiff’s eyes if they should come into contact with his eyes; that in said work plaintiff would get said substances on his hands and other parts of his person and clothes, and was likely to get said substances into and about his eyes; that, by reason thereof, at all times mentioned herein, said work and duties were unsafe, highly dangerous, and not reasonably safe for plaintiff; and that in said work and while performing his said duties for defendant plaintiff did get such substances into and about his eyes, with the consequences set out herein."
That "he was inexperienced in said work and did not know of or appreciate such danger of injurious consequences to his eyes, but he states that defendant and its superiors over plaintiff knew, or, by the exercise of ordinary care, could have known of such danger and all of the facts and conditions set forth herein, including plaintiff’s ignorance and inexperience, at the time plaintiff’s eyes became so affected, and long enough prior thereto for defendant, thereafter, by the exercise of ordinary care, to have warned and instructed plaintiff concerning said danger and/or to have caused him to protect his eyes from such substances, or to have caused reasonable inspection to be made of such premises and their conditions before requiring plaintiff to encounter the same, or to have caused some reasonably safe method to be adopted for doing such work, and thereby to have prevented any disease of or injurious effects to plaintiff’s eyes, all of which things, however, defendant and its agents and servants carelessly and negligently failed to do, and, notwithstanding the aforesaid facts, defendant and its superiors over plaintiff carelessly and negligently ordered and directed plaintiff to do said work under said conditions, and carelessly and negligently failed to warn him of the said danger and the likelihood of said serious consequences, and carelessly and negligently assured plaintiff that he could do said work in safety and without serious harm to his eyes, and carelessly and negligently failed to exercise ordinary care to furnish plaintiff a reasonably safe place to work; and plaintiff states, also, that in doing said work he relied upon said orders, directions, and assurances, and upon the knowledge and judgment of his said superiors."
That "the injurious consequences of which he complains herein were not caused by any event that happened suddenly or violently at any particular time; that there was no such single event to which the consequences complained of herein were or are directly traceable; but that said consequences resulted from conditions that were more or less usual in plaintiff’s said work, and which caused irritation, poisoning, inflammation, weakening, and disease of plaintiff’s eyelids and eyeballs and their various parts, without causing, at first, any apparent violence to the physical structure of plaintiff’s body."
That "as a direct result of said careless and negligent acts and omissions of defendant and its agents and servants, plaintiff has sustained the following conditions and damage: His eyes have been caused to be sore and diseased, and his sight (particularly in his left eye) has been seriously impaired and destroyed; he has had to have much medical and surgical treatment and attention and has had to incur expense in the sum of about one hundred dollars ($100.00), and he will have to incur, for similar purposes in the future, expense in amounts now undetermined and which, therefore, plaintiff is unable to state more definitely at this time; he has suffered, and in the future will suffer, much pain, mental anguish, sleeplessness, nervousness, and permanent impairment of his ability to work and earn money and a livelihood; all of said conditions and said results therefrom are permanent and lasting in their character and effect; and plaintiff has been damaged, as a whole, in the sum of twenty-five thousand dollars ($25,000.00) as a direct result of the aforesaid negligence of defendant."
Wherefore judgment in the sum of $25,000 was prayed.
Defendant filed a demurrer to the said first amended petition, based on the following grounds, because:
The trial court overruled said demurrer, whereupon defendant filed its answer to plaintiff’s first amended petition, which, after a general denial, pleaded assumption of risk, and for further answer pleaded:
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