Glover v. Meinrath
| Decision Date | 10 March 1896 |
| Citation | 34 S.W. 72,133 Mo. 292 |
| Parties | Glover v. Meinrath et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Reversed and remanded.
Albert Young for appellants.
(1) The act of the legislature under which the jury was summoned and impaneled in this cause is unconstitutional and defendants' motion to quash should have been sustained. Laws of Missouri, 1891, p. 172; Constitution of Missouri art. 4, sec. 53; State v. Jackson Co., 89 Mo. 237; Murnane v. St. Louis, 27 S.W. 711. (2) If there was any negligence in the operation or alleged changed method of operating the drier in question, it was caused by day engineer, Milks, who, under the testimony was a fellow servant of plaintiff, and for his negligence plaintiff can not recover; and therefore the demurrer to the evidence should have been sustained. Prima facie, all who enter the employ of a single master are engaged in a common service and are fellow servants; the burden of proof is upon the plaintiff to show a different relationship. Moore v Railroad, 85 Mo. 588; Schaub v. Railroad, 106 Mo. 74; Railroad v. Baugh, 149 U.S. 368; Renfro v. Railroad, 86 Mo. 302. (3) Instructions numbered 1, 2 3, and 4, asked by defendants, should have been given. The rule between master and servant is that the servant contracts that he has all necessary skill and experience for his employment and that he understands the machinery about which he is to work. He also assumes all the risks incident to the business in which he engages and the duties he engages to perform. Jackson v. Railroad, 104 Mo. 448; Alcorn v. Railroad, 108 Mo. 81; Smith v. Railroad, 69 Mo. 32; Renfro v. Railroad, 86 Mo. 302; Harvey v. Gold Mining Co., 31 P. 819; Lumber Co. v. Bethea, 57 Ark. 76; Foley v. Light Co., 24 A. 487.
F. V. Kander and F. B. Case for respondent.
(1) Instructions 3 and 5, given in behalf of plaintiff, correctly stated the law of the case. A servant does not assume risks of any danger arising from unsafe or defective methods of operating machinery or of machinery itself, unless he has, or may be presumed to have, knowledge or notice thereof. 14 Am. and Eng. Encyclopedia of Law, 843, and cases cited; Schroeder v. Railroad, 108 Mo. 322; Gibson v. Railroad, 46 Mo. 163, 169. (2) The servant has the right to assume that the machinery or appliances furnished by the master has been properly constructed. Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 71 Mo. 66; Steinhauser v. Spraul, 114 Mo. 551. (3) "The master is no less responsible to his workman for personal injuries occasioned by a defective system of using machinery than for injuries caused by a defect in the machinery itself." Schroeder v. Railroad, 108 Mo. 322. (4) Instructions 1, 2, 3, and 4, asked by defendants, were modified by the court and given in form applicable to the facts in the case by instructions 1, 2, 3, and 4, given by the court of its own motion. An employee takes the risks of known dangers and no others. Keegan v. Kavanaugh, 62 Mo. 230; Johnson v. Spear, 76 Mich. 139; Myers v. Hudson Iron Co., 120 Mass. 125. (5) The instructions as a whole were more favorable to appellant than the facts warranted.
This is an action for damages caused to plaintiff while at work for defendants at their mill as an engineer, at the trial of which plaintiff obtained a judgment for $ 2,000. The appeal was taken by defendants to the Kansas City court of appeals and afterward on their motion was ordered transferred to this court on the ground that the bill of exceptions and the record in the case disclosed the fact that the constitutionality of an act of the legislature was involved.
The assignments of error made by the appellant, that will be noticed in this opinion, are "the refusal of the trial court to quash the panel of jurors called to try the case, the giving of improper instructions on behalf of the plaintiff, the refusal of proper instructions asked by defendants and the after giving of same improperly modified by the court on its own behalf." The first assignment of error, involving as it does the constitutionality of the law under which the jury that tried the case was selected and summoned is the one that alone gives this court jurisdiction, as without it, on account of the amount involved, we would be wanting in authority to hear and determine the question raised in the second assignment.
We hope that the opinion delivered in the case of Dunne v. Cable R'y Co., 131 Mo. 1, and twice approvingly quoted and followed since by this court, will put at rest all further controversy as to the constitutionality of the act of February 25, 1895, providing and designating the manner of selecting petit jurors and prescribing their qualifications, in counties in this state which now have or which may hereafter contain a city of more than fifty thousand inhabitants and less than three hundred thousand inhabitants, and known in the common parlance of the Kansas City bar as the "Kansas City Jury Law," so that appeal from the trial court of that city will reach the Kansas City court of appeals or this court, according as provided by law, the question as to the constitutionality of that act being treated as a settled and determined issue. In disposing of plaintiff's first assignment of error we will go into no discussion as to the validity or constitutionality of the act further than to say that we adhere to and reaffirm the opinion of this court in the case of Dunne v. Cable R'y Co., above cited.
As previously said, this action is for personal injuries received by plaintiff while in the employ of defendants as an engineer, based upon a petition charging that defendants had and used in their mill a certain machine constructed and used for the purpose of drying corn meal and other food products manufactured by them, intended to be used and operated as a steam drier, and that same should have been heated by steam from the boiler in said mill of defendants, but that defendants negligently, carelessly, and unskillfully used and operated said drier as a hot water machine, and caused the same to be heated by hot water and steam and not by steam alone; and that by changing, using, and operating said machine as a hot water and steam drier instead of heating and using said machine with steam alone as the same was constructed and intended to be used, made it a dangerous machine as defendants well knew; and that defendants negligently and carelessly failed and neglected to inform plaintiff of the manner in which said machine was at that time operated, and of the dangerous character thereof caused by changing the method of operating and using same, and that plaintiff was ignorant of the manner in which said machine was used, and of the change made in heating same as above named; and that on the night of June 2, 1892, while in the employ of defendants as an engineer, with the duty of superintending and operating the boilers and engines used in and about defendants' mill and to repair the steam machinery used therein, he was directed by the miller in charge of and operating the milling machinery of said mill to repair the packing box around the shaft of said drier. That plaintiff supposing and believing that the drier was operated and conducted as a steam drier, as the same was constructed and intended to be used, resorted to the proper methods of cooling a steam drier, and in order to make the said repairs loosened the nuts of the bolts of said packing box, but that by reason of the change in the method of heating said machine as aforesaid, the drier being partially filled with hot water and steam, the said hot water and steam escaped with a violent pressure upon plaintiff, scalding and burning him to his damage, etc. That had said machine been used as the same was constructed and intended, and the same heated with steam, the said injury would and could not have occurred.
The defendant set up by way of answer a general denial and a plea of contributory negligence on the part of plaintiff and his coemployees and fellow servants.
The testimony shows that plaintiff was scalded while attempting to repack a packing box in the steam drier at that time being used by defendants in their mill and heated by means of hot water and steam instead of by steam alone as it was contemplated to be heated by its manufacturer. The testimony shows that the machine was not rendered in any wise more dangerous as a machine while in use about the mill, but that as changed it was a perfect machine and did better the work for which it was purchased and intended to be used by defendants, than when heated alone by steam. The drier consisted of a cylinder composed of a number of steam pipes closed at one end, while the other ends are screwed into a round hollow chamber. This hollow chamber forms one end of the drier and has a hollow journal cast with it on which the cylinder revolves. It was while attempting to repack the packing box in which this journal was working that the plaintiff was scalded by the hot water issuing from the machines while he was unscrewing the nuts from the bolts that held the packing box in place.
The change in the method of heating the machine was made by the day engineer at the mill by simply inserting a stop cock or valve in the pipe that conveyed the water of condensation that would gather in the machine by the steam cooling off, so as to enable him by turning this valve to check the flow of the condensed water in the drier and hold it in the machine instead of permitting its return to the water compartment of the boilers in the basement to be reheated and...
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