Gummerson v. Kansas City Bolt & Nut Co.

• Decision Date: 07 December 1914
• Docket Number: No. 11030.,11030.
• Citation: 171 S.W. 959
• Parties: GUMMERSON v. KANSAS CITY BOLT & NUT CO.
• Court: Missouri Court of Appeals

171 S.W. 959

GUMMERSON v. KANSAS CITY BOLT & NUT CO.

No. 11030.

Kansas City Court of Appeals. Missouri.

December 7, 1914.

Rehearing Denied December 21, 1914.

1. PLEADING (§ 34) — CONSTRUCTION FOR VERDICT.

A petition is to be liberally construed after verdict.

2. MASTER AND SERVANT (§§ 101, 102) — MASTER'S LIABILITY — USUAL AND ORDINARY METHOD OF WORK — "NATURAL DANGERS" — "NEGLIGENCE."

A master is not negligent toward a servant when he conducts his business as other prudent persons ordinarily conduct the same kind of business; and, being liable for negligence and not for danger, his duty to his servant does not require the elimination of dangers inherent in the work conducted in a reasonably careful manner; but he is held to ordinary care to keep the dangers within their inherent bounds, and liable to a servant injured from a failure to do so, however great the "natural dangers," that term meaning those which reasonable care, having regard not only to the safety of the servant, but also the necessities of the business, cannot be expected to suppress, while the term "negligence," as to a master's duty, means the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

3. MASTER AND SERVANT (§ 206) — ASSUMPTION OF RISK — INHERENT DANGERS.

A servant assumes the risk of dangers which inhere in his work when conducted in an ordinary and reasonably careful manner.

4. MASTER AND SERVANT (§ 288) — ACTION FOR INJURY — QUESTION FOR JURY — ASSUMPTION OF RISK.

On evidence in a servant's action for injury to his eye from an acid or caustic liquid driven from the end of a pipe, which had been collected as scrap iron and which, without having

been cleaned, was being flattened over an anvil, held that his assumption of risk was for the jury.

5. MASTER AND SERVANT (§ 286) — ACTION FOR INJURY — QUESTION FOR JURY — NEGLIGENCE.

On evidence in such action, the master's negligence in running such pipes, collected from all sorts of places and known to be sometimes charged with highly dangerous matter, over the anvil without any inspection or effort to remove such dangerous matter was for the jury.

6. TRIAL § (256) — REQUEST FOR INSTRUCTIONS — FURTHER OR MORE SPECIFIC INSTRUCTIONS.

Defendant's objection to plaintiff's instruction on the measure of damages, correct as far as they went, were untenable in the absence of any request for further instructions.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by W. M. Gummerson against the Kansas City Bolt & Nut Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Rees Turpin and James E. Taylor, both of Kansas City, for appellant. Leonard Ulmann and John L. Wheeler, both of Kansas City, for respondent.

JOHNSON, J.

Plaintiff was injured while in the service of defendant as a common laborer, and sued to recover his damages on the ground that his injury was caused by a negligent breach of defendant's duty to exercise reasonable care to furnish him a reasonably safe place in which to work. The answer is a general denial and pleas of contributory negligence and assumed risk. A trial in the circuit court resulted in a verdict and judgment for plaintiff. Defendant appealed.

Defendant, a manufacturer of nuts and bolts, employed plaintiff to work at common labor in and about its factory at Sheffield near Kansas City. On the third day of his employment he was assigned to the task of operating shears for cutting iron, after being instructed in the proper method of using them. His post was in the same room with, and about 20 feet from, an electric hammer and anvil. The raw material from which defendant manufactured nuts and bolts consisted almost entirely of used and discarded iron pipes, which defendant procured from dealers in scrap iron and from other sources. These pipes were of different sizes and lengths, many were bent and twisted into various shapes, and as a general rule defendant had no knowledge of the character of their former uses. Many of them were rusty and foul inside, and some contained a residue of liquids which had flowed through them while they were in use. Defendant's scrap piler, introduced as a witness by plaintiff, testified that the pipes which were of various sizes and lengths came in cars from the scrap dealers, and that generally "they contain dirt, grease, soap, and various kinds of filth." The manager of defendant testified:

"The pipe is, to begin with, old pipe; it is scrap pipe when it is bought, which means that it is rusty and dirty, just as any old, discarded iron or metal would be. Q. You buy pipe that has been used in these various factories, in the manufacture of soap and other articles, haven't you? A. We are buying pipe anywhere we can find it."

Further he said that:

"All pipes contain some residue of the material used in them before they were discarded. * * * It is not cleaned before it is sent to us."

It is conceded that no inspection of the ends of the pipes was made for the purpose of detecting and removing such liquid substances as might be dangerous, and it is claimed by the witnesses for defendant that the method of work generally followed in that kind of factory ignores the observance of such care, as being unnecessary and commercially impracticable. The first process to which the pipes are treated is that of being passed, one by one, over the anvil, and subjected to the rapid battery of the hammer, which mashes the pipe into a flat bar. The bar then is taken by the operator of the shears and cut into short lengths, which are bundled together and taken to the furnace. While plaintiff was working at the shears and had turned, facing the anvil, to pick up another bar, a pipe just being started over the anvil was struck on the end by the hammer, and one of the results of the blow was to squirt a whitish and highly acid or caustic liquid from the end of the pipe with such force as to carry it to plaintiff, and a portion of the liquid struck him in the eye, burning and permanently injuring the eyeball.

Plaintiff testified that the liquid "was something like soap or lye * * * kind of white-looking * * * looked like soap," that "quite a little bit" struck his eye, and "I took my hand like that and whipped it out of my eye as soon as it hit me. * * * It looked like soft soap and had some kind of acid in; it burned."

Another workman, a witness for plaintiff, testified:

"Well, I think it had something strong in it from the way it burned my neck, but what it was I couldn't say. * * * It was soft, something like oil; it would run just like oil; it was very soft, some of it, and some of it was perfectly dry but in this particular instance it was soft."

A physician who treated plaintiff for the injury testified:

"On August 22, 1910, Mr. Gummerson came to my office with a bad, very bad, eye. It gave me the appearance of a burn. He had some four or five scars over and around the ball of the eye, and considerable irritation of the conjunctiva, or the lining membrane around the eyeball, and at that time there was a great deal of irritation, of course, due to the injury."

The evidence as a whole tends to show: First, defendant knew that pipes were likely to be received which carried a residuum of deleterious and dangerous substances such as strong acids and caustics; and, second, that the pipe under consideration contained some...