Freese v. Rogers-Schmitt Wire & Iron Co.
| Decision Date | 01 July 1925 |
| Docket Number | 24990 |
| Citation | 274 S.W. 778 |
| Parties | FREESE v. ROGERS-SCHMITT WIRE & IRON CO |
| Court | Missouri Supreme Court |
Rehearing Denied July 30, 1925.
A & J. F. Lee and Joseph Renard, all of St. Louis, for appellant.
Taylor B. Wyrick, of St. Louis (George Barnett, of St. Louis, of counsel), for respondent.
Action by a servant against the master for personal injuries alleged to have resulted from the latter's negligence. Plaintiff was a mechanic, and on November 2, 1921, was in the employ of defendant as an automobile repair and maintenance man. Defendant's employes worked in two shifts, a day shift and a night shift. Plaintiff belonged to the day force, going to work at 7:30 in the morning and quitting at 5:30 in the afternoon. One Plew was defendant's superintendent, and Krug its day foreman. Plaintiff worked wholly under the supervision and direction of Krug. On the date just mentioned, the condition of the work at defendant's plant was such that it required the day shift to work overtime. Plew directed Krug to continue his men at work until certain automobiles and trucks belonging to customers and waiting to be cleaned and repaired had been put in order. Among these was a truck the hoist pump of which was to be drained and cleaned. The hoist was located immediately back of the cab and was used to raise and lower one end of the body of the truck in dumping the load. It was operated with the motor which propelled the truck, and could be started in motion by the driver from his seat. The mechanism of the pump was not very clearly described by the witnesses, but it appears that it was drained and cleaned in this manner; a plug was first taken out at the top; a plate at the bottom, held in place by several threaded bolts, was next removed; after the old oil ran out, five gallons of cleaning mixture, coal oil and gasoline in equal parts, was poured in at the top; the plug was then reinserted and the plate at the bottom reattached; and after this was done the pump was put in operation. In order to remove of reattach the plate at the bottom, it was necessary to get under the truck and into a kneeling or stooping position. The end of the exhaust pipe of the motor of the truck in question was 32 inches from the plate just mentioned, and the exhaust was not equipped with a shutter or 'cut-out.'
Plaintiff was instructed by Krug to drain and clean the hoist pump just referred to. As plaintiff had never cleaned one before, Krug gave him minute directions as to the manner in which it should be done. After giving the instructions, Krug went away. About the time plaintiff had taken out the plug at the top of the pump, Krug returned, saying that the space occupied by the truck was for the time being required for other work. He thereupon assigned plaintiff to another task and took the truck outside of the building. After an interval he brought the truck back inside, directed the plaintiff to continue the work of draining and cleaning the pump and again went away. It was then about 11 o'clock p.m. Plaintiff removed the plate at the bottom, poured the cleaning mixture in at the top, reinserted the plug and started putting in the bolts which held the plate at the bottom. While he was engaged in screwing in the bolts, Krug returned and with a profane expletive said, He then, without saying another word, immediately walked around to the front of the car, cranked the motor, climbed into the cab and started the pump. Plaintiff was still turning the screws, and as the plate had not been brought entirely into place there was a slight opening or crevice through which the pump forced a spray of the cleaning mixture. Almost instantly there was a flare, caused by the ignition of the coal oil and gasoline, in the air and on plaintiff's clothes. From the burns plaintiff received, he was seriously and permanently injured.
The foregoing is a summary of the facts which plaintiff's evidence tended to show. No evidence was offered on the part of defendant. The negligence, upon which the action is grounded, was summarized in the petition as follows:
'Plaintiff avers that defendant negligently failed to furnish plaintiff, its servant, a reasonably safe place in which to do the said work it had thus required of him, and negligently failed to provide a reasonably safe method and means of doing said work; that defendant knew, or by the exercise of ordinary care could have known, said mixture of coal oil and gasoline, which it furnished plaintiff for said work, was very volatile, combustive, and explosive, and that the starting of the engine would be very apt, and in fact certain, to ignite and explode said mixture, and thus endanger and injure plaintiff thus situated at his work, but defendant, its agent and servant, wholly disregarding plaintiff's said perilous position and condition, negligently and carelessly started said engine and thus directly caused said mixture to ignite and plaintiff's clothing to be burned and plaintiff to be thus severely burned and permanently injured.'
The reply was a general denial.
Plaintiff's principal instruction followed the allegations of the petition. In addition it required the jury to find:
'That one Eugene Krug was intrusted by the defendant with authority...
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