Henderson v. Wilson Stove & Mfg. Co.

• Decision Date: 08 May 1917
• Docket Number: No. 14531.,14531.
• Citation: 197 S.W. 177
• Court: Missouri Court of Appeals
• Parties: HENDERSON v. WILSON STOVE & MFG. CO.

197 S.W. 177

HENDERSON v. WILSON STOVE & MFG. CO.

No. 14531.

St. Louis Court of Appeals. Missouri.

May 8, 1917.

Rehearing Denied July 10, 1917.

Appeal from St. Louis Circuit Court; Gustavus A. Wurdeman, Judge.

"Not to be officially published."

Action by John J. Henderson, by John G. Henderson, his next friend, against the Wilson Stove & Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. U. Hayden, of St. Louis, for appellant. Floyd W. Brooks, of Valley Park, and Richard F. Ralph, of St. Louis, for respondent.

ALLEN, J.

Plaintiff, a minor, sues by his next friend to recover for personal injuries sustained by him while engaged in the service of defendant as its servant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $5,000, and the case is here on defendant's appeal.

The petition charges that plaintiff was employed in the "nickeling or buffing room" of defendant's manufacturing plant, where defendant maintained an open vat, standing upon the floor of that room, containing a large quantity of a "highly corrosive solution made of boiling water and chemicals," which was "slick and slippery and was highly corrosive, instantly decomposing or destroying human flesh or like substances when brought in contact with it," which vat was made of metal, "with a flat metal projection about the rim thereof," and was about 5 feet in length, 2½ feet in width, and 2½ feet deep. It is averred that in May, 1913, about six weeks prior to plaintiff's injury, he was ordered by defendant's foreman to work at the vat mentioned, and that defendant "caused plaintiff to be instructed in the manner of doing the work he was required and ordered to perform"; that plaintiff was instructed to pack metal castings in baskets made of light or sheet iron, equipped with bails, and put them into the solution contained in the vat, to place a basket at one end of the vat, follow this with two others, and then, after the lapse of a certain time, to remove the basket first inserted and move the others along the vat so as to bring the second basket into the place previously occupied by the first, at the end of the vat, using for this purpose a copper rod with a hook at one end thereof; and that to thus move a basket along the vat, plaintiff was instructed to "brace himself by placing one foot against the extended rim of the vat in order to secure sufficient purchase to drag the basket and contents, weighing about 80 pounds, forward."

The petition further alleges that in moving each basket from the vat some of the corrosive solution dripped therefrom upon the rim and sides of the vat, and upon the floor thereabout where plaintiff was required to stand, covering the same with a "slimy, slippery coating," rendering such surfaces slippery; and that this substance upon the floor "ate the heels of plaintiff's shoes and made the soles thereof slick and slimy." And it is averred that on July 8, 1913, while following the orders and instructions of defendant, and relying upon defendant's superior knowledge, plaintiff undertook to move one of the baskets in the vat, having braced himself by placing his left foot against the rim of the vat, as he had been instructed to do, and while in the act of moving the basket, "on account of the edge, side, and rim of the vat being greasy, slick and slippery, and his shoe being in a like condition because of the quantities of said solution contained in baskets previously withdrawn from said vat dripping from and running out upon the sides, rim, and edges of said vat, and upon the floor and place where plaintiff stood and walked at his work, his said foot and shoe thereon slipped off the edge or rim of said vat and plunged, along with the leg thereof, into the vat and corrosive substance contained therein," causing plaintiff's foot and leg to be permanently injured.

The petition then charges that defendant "was negligent in ordering and requiring plaintiff to perform said work in said manner and under said conditions (which conditions were well known to the defendant, or could have been known by the exercise of ordinary care) when defendant knew, or by the exercise of ordinary care could and should have known, that the obeyance of said order by plaintiff imperiled his safety and was likely to result in injury to him."

The answer is a general denial, coupled with a plea that plaintiff's injuries, if any, "were the sole, direct and proximate result of carelessness and negligence on the part of plaintiff," in that he negligently placed his foot against the edge of the vat when he knew, or by the exercise of ordinary care would have known, that the edge thereof was slippery, and that his shoe was likewise slippery, and when he knew the dangerous character of the contents of the vat, or by the exercise of ordinary care would have so known, and that plaintiff was negligent in placing his foot on the edge of the vat when he had been warned not to do so.

The evidence shows that plaintiff was about 16 years of age at the time of his injury. He began work for defendant in April, 1913. About the middle of May of that year it seems plaintiff was put to work in the room and about the vat above mentioned, performing duties of the character described in the petition. One Zeman, at the direction of defendant's foreman, instructed plaintiff as to the details of performing the work. According to the testimony of both plaintiff and Zeman, the latter told plaintiff to brace his foot on the edge of the tank when he undertook to drag one of these heavy baskets along the vat; otherwise he was likely to slip and "go in there headfirst." And plaintiff testified that he performed this portion of the work in that manner until the time of his injury. The evidence is that the liquid contained in this vat was highly corrosive, was kept at the boiling point, and was of a slimy and greasy nature; that in taking out the metal baskets this liquid ran about the floor and covered the rim and sides of the vat, causing both the vat and the floor to be slippery, and that it ate away the soles and heels of plaintiff's shoes, although the floor about the vat had a covering of slats.

Plaintiff's injury occurred substantially in the manner alleged in the petition. In dragging one of these baskets along the vat, with his left foot braced against the edge or rim thereof, his foot slipped into the contents of the vat, whereby he was very seriously injured. At that time, according to his testimony, the heel of his shoe upon his left foot had become worn or eaten down until there was but little remaining thereof. He indicated at the trial the height of the heel as it then remained, which he estimated to be about one-quarter of an inch.

It is earnestly contended that the trial court erred in refusing to peremptorily direct a verdict for defendant. The argument advanced in support of this contention appears to assume that plaintiff's case proceeds solely upon the theory of a negligent order given plaintiff by one clothed with authority to represent defendant, the obeyance of which by plaintiff resulted in his injury. And it is argued that the direction given plaintiff to brace himself by putting his foot on the rim of the vat was not an order; and, if an order, not a negligent one, and not the proximate cause of plaintiff's injury.

It is true that the petition charges that defendant caused plaintiff to be instructed concerning his duties, and that plaintiff was directed to put his foot on the edge of the rim when moving these baskets in the vat, and charges too that at the time of his injury he was following the orders and instructions of defendant. But the petition also sets up fully the facts concerning the conditions surrounding plaintiff and under which he was required to work, the highly dangerous character of the boiling corrosive solution contained in the vat, the method employed by defendant for the doing of the work, and the slimy and slippery condition of the rim of the vat and of the place where plaintiff stood and worked, resulting from the method employed, together with the effect of the solution upon his shoes. And having made these averments, the petition charges that defendant was negligent "in ordering and requiring plaintiff to perform said work in said manner and under said conditions." The petition, therefore, appears to be broad enough to warrant a recovery upon the theory that to require a boy of plaintiff's age and experience to perform the work of lifting and moving about these heavy baskets in this vat, filled with a deadly substance heated to the boiling point, in the manner and under the conditions alleged to have existed, without taking any precautions for his safety, or to minimize the danger, other than to tell him to brace himself by putting his foot upon the slimy edge of the vat, was a negligent breach of the master's duty to exercise ordinary care to employ a reasonably safe method, as well as to furnish reasonably safe appliances.

Plaintiff's theory must be gathered from his petition. The evidence fully establishes the facts alleged. Indeed the facts appear to be undisputed. And plaintiff asked no instructions, other than an instruction on the measure of damages, a practice condemned but not held to be reversible error. The petition is not assailed as for a failure to state a cause of action, nor, so far as appears, was it in any manner attacked below. It remains to be seen whether the facts proved made out a prima facie case upon any theory fairly within the scope and intendment of the petition.

It devolved upon plaintiff, of course, to establish negligence on the part of the defendant, in the nonfulfillment of some duty owing to plaintiff. It is this phase of the case with which we are now dealing, viz. whether or not any negligence or breach of duty on defendant's part appears, leaving other questions to be considered...