Fox v. Jacob Dold Packing Company
| Citation | 70 S.W. 164,96 Mo.App. 173 |
| Parties | FRANK P. FOX, Respondent, v. JACOB DOLD PACKING COMPANY, Appellant |
| Decision Date | 02 June 1902 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Judgment affirmed.
Pratt Dana & Black for appellant.
(1) The trial court erred in overruling defendant's motion to dismiss this action for want of jurisdiction. Powers v Railroad, 169 U.S. 97; Cox v. Railroad, 68 Ga 448; Railroad v. Fulton, 59 Ohio St. 575. (2) The trial court erred in overruling defendant's motion to stay proceedings in the case at bar until the cost taxed against plaintiff in his former suit upon the same cause of action should be paid. 23 Am. and Eng. Enc. of Law, 527; Ex parte Street, 106 Ala. 102; Sooy v. McKean, 9 N. J. Law 88; Buckles v. Railroad, 47 F. 424; Jones v. Barnard, 63 Mo.App. 501. (3) The trial court erred in admitting, over defendant's objection, irrelevant, incompetent and immaterial testimony. (4) The trial court erred in refusing to direct a verdict in favor of defendant at the close of plaintiff's case and again at the close of all the evidence: (a) Because of plaintiff's contributory negligence. McDonnell v. Railroad, 105 Iowa 459; 1 Bailey's Personal Injuries Relating to Master and Servant, pp. 392, 393; Moore v. Railroad, 146 Mo. 572, 582; Coal Co. v. Head, 66 S.W. 721; Kinney v. Corbin, 132 Pa. 341; Penn. Co. v. O'Shauhgnessy, 122 Ind. 588; Railroad v. Estes, 37 Kan. 715; Poindexter v. Paper Co., 84 Mo.App. 352. (b) Because the negligence, if there was any shown, on the part of defendant's employees, was that of co-servants with plaintiff, of whose competency no complaint is made, in failing to use appliances furnished by defendant which were suitable for the purpose. Negligence of the master can not be predicated upon an improper use of or failure to use suitable appliances. Sofield v. Smelting Co., 64 N. J. Law 605; Filbert v. Canal Co., 121 N.Y. 207; Railroad v. Charless, 162 U.S. 359, 364; Railroad v. Brown, 73 F. 970, 974 (U.S.C. C. A.); 1 Bailey's Personal Injuries Relating to Master and Servant, secs. 154, 155, 157, 160, 163, 290 and 316; Lawless v. Gas Co., 72 Mo.App. 679; Carrigan v. Mfg. Co., 170 Mass. 79; Marshall v. Hay Press Co., 69 Mo.App. 256; Watson v. Coal Co., 52 Mo.App. 366; Garland v. Railway, 85 Mo.App. 579; Card v. Eddy, 129 Mo. 510; Moore v. Railroad, 85 Mo. 858; Hawk v. Lumber Co., 65 S.W. 1022; Duke v. Lewiston, 83 Me. 217. (c) Furthermore, plaintiff failed to show how long the condition of the vat of which he complained had existed, or that it had existed long enough to charge defendant with knowledge of such condition and afford it time to do what was necessary to correct it. Burns v. Railroad, 129 Mo. 41; Perkins v. Railroad, 103 Mo. 59; Yarnell v. Railroad, 113 Mo. 580; Sherman & Redfield on Negligence (4 Ed.), secs. 194 and 222; Hough v. Railroad, 100 U.S. 213; Covey v. Railroad, 86 Mo. 641; Williams v. Railroad, 119 Mo. 316; King v. Railroad, 90 Mo. 520. (5) The trial court erred in giving plaintiff's instructions Nos. 1 and 2.
Ben. T. Hardin for respondent.
(1) The trial court had jurisdiction of this cause; there is absolutely nothing in the first point in appellant's brief. This court has settled the question, and life is too short to worry the court further on this point. Krueger v. Railroad, 84 Mo.App. 358. (2) The court committed no error in overruling defendant's motion to stay proceedings until costs were paid. (3) There is no reversible error in admitting testimony in the trial. Roe v. Bank, 167 Mo. 406; Lumber Co. v. Rogers, 145 Mo. 445. (4) The questions of negligence, and contributory negligence would be more properly raised if the case were before a jury, and appellant's argument would be more appropriate there than here. (5) There was no error committed by the trial court in giving and refusing instructions; the case was well tried, the judgment was for the right party, and the appellant is in no condition to complain here.
--This is a suit for personal injuries sustained by the plaintiff while in the employ of the defendant, on the ground of alleged negligence.
On the twenty-ninth day of August, 1898, the defendant was engaged, amongst other things, in manufacturing ice at its place of business in Kansas City, Missouri. The building in which the ice was so manufactured was of brick, about seventy-five feet wide from east to west and about ninety-five feet long from north to sough; along the center of this building, running north and south, were two large brine tanks in which ice was frozen; each tank was eighty-six feet long and thirty-two feet wide, between which there was a space separating them of about two feet; over each tank, and making a sort of floor, was a skeleton or frame of timbers with rectangular spaces opening down into the brine, through which were placed cans filled with water which was frozen into ice by the action of the brine; these cans were about four feet long and about eighteen inches thick; over each tank was a moving crane which could be operated backward and forward, so that when the water in a can was frozen the crane was attached and by it the can was lifted out of the brine and carried to a space north of the tank where it was lowered into a vat of hot water to loosen the ice so that it would, when it was lifted out of the water, slip from the can onto a chute which led to the icehouse. There were two of these hot water vats, one for use in connection with each brine tank; these vats were located in the nine-foot space between the north ends of the tanks and the north wall of the building. The entrance into the building was from the west side near its northwest corner. There were two gangs of men operating the ice plant, one gang for day and the other for night work. The general manager of the plant was William B. Johnson, and the night gang was composed of Joseph Gurry, E. Brunk, C. Klein and E. Tobler. Johnson directed the work during the day and left directions with Gurry as to how the work was to be done at night. There were blackboards on the north wall--two near each hot water tank--on which the ice pullers were to mark the number of cakes taken out of the brine each hour, the temperature of the water placed in the cans and the back pressure, the men using for this purpose the boards on the sides of their respective tanks. There was also a blackboard in the engine-room connected with the works and on which various temperatures were marked, that of the brine being among them. It was plaintiff's duty to obtain and mark these temperatures on said board; it was also his duty, according to his testimony, he "had to go through the coolers--through the packing plant and take the temperature of the coolers, and go through the icehouse and take the temperature of brine in the ice-tank and mark the temperature on a piece of paper and then take them from the piece of paper and put them on the blackboard, or a bulletin board as they called it." He had been in defendant's employ in this capacity about one year and knew all about the interior of the ice plant, the location of the hot water vats, the thermometers, etc.; he went in there every two hours each night and his regular route was to enter by the door at the northwest corner of the room, in front of which door, and about fifteen feet away, was one of the hot water vats. He stated that when he entered by this door it was his custom to first obtain the temperature after which he would walk to the blackboard north of the east vat and mark on it the temperature of that vat; he would then walk to the blackboard north of the west vat and mark on it the temperature of that vat. Defendant, however, disputed plaintiff's claim of it being his custom to mark on the blackboards in the ice plant. Plaintiff stated that a Mr. Roberts, who seems to have been general manager of the defendant, wanted him to make out reports of the temperature of the brine at night and turn them into the office in the morning, but as that required of plaintiff too much work, at his request Mr. Roberts put up the blackboards in the ice plant upon which he could mark the temperature of the brine. The plaintiff alleges that on the night in question, after taking the temperature of the first brine vat he walked over to the second and took the temperature of that and then walked to the door where his attention was called to the men there. He entered into a conversation with these men, who were workmen or employes of defendant, and told them the temperature of the brine was high, whereupon Gurry said that he ought to have seen what it was that day. Klein, another of the group, was going to one of the boards and said he would show plaintiff. The latter followed Klein, he says, to mark down the temperature he had taken. Klein was in front and plaintiff followed holding his lantern in one hand and the board with paper on which to mark the temperature, and in the other he held his pencil. Plaintiff then says that he picked up the thermometer to ascertain the temperature at which time he stepped into the hot water vat which was uncovered. He was scalded by the hot water in the vat and severely injured thereby.
The evidence of defendant tended to show that the blackboards Roberts had put up for plaintiff to register the condition of the brine had only been put up the day previous to the injury and that plaintiff had never used them prior to said occasion. It was shown that it was the custom of the plaintiff to have these hot water vats covered when not in use, and that at the time he fell into one of them they were not in use and...
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