Hunt v. Desloge Consol. Lead Co.

• Decision Date: 16 February 1904
• Parties: HUNT v. DESLOGE CONSOL. LEAD CO.
• Court: Missouri Court of Appeals

79 S.W. 710

104 Mo. App. 377

HUNT v. DESLOGE CONSOL. LEAD CO.

St. Louis Court of Appeals. Missouri.

February 16, 1904.

MASTER AND SERVANT — DEATH BY WRONGFUL ACT — NEGLIGENCE — FELLOW SERVANTS — EVIDENCE.

1. Where the superintendent of a mill gave an employé control over the laborers engaged on a particular piece of work, requiring them to obey his orders, he was not a fellow servant of the other employés, but a representative of the master.

2. In an action for negligence causing death, evidence that witness called the foreman's attention to the fact that deceased was a green hand, and that it was not safe for him to work where he was killed, was not prejudicial, in view of other evidence showing that he was in fact a green hand, and that it was dangerous to work where he was placed.

3. In an action for negligence causing the death of a servant who had been directed by his superior to enter a closed ash pit, in which there was evidence that the boss directed a workman outside the pit to hand a hose to deceased after he had entered the pit, to the knowledge of the boss, the testimony of this workman that, when the boss handed him the hose and told him to hand it to deceased, he "thought" he meant to hand it to him in the pit, was not prejudicial.

4. In an action for death alleged to have been caused by the negligence of defendant mill company in ordering deceased to go into a covered pit filled with hot ashes and turn water on them, the admission of evidence that the usual method of cleaning the pit was by turning water on before any one went in, and that it was not safe to go into the pit as deceased did, was not error.

5. Where an inexperienced laborer was ordered to go into a covered pit full of hot ashes and turn water on them, as a result of which he was scalded to death by the steam, the master was guilty of negligence.

Appeal from Circuit Court, St. Francois County; Jas. D. Fox, Judge.

Action by Margaret Hunt against the Desloge Consolidated Lead Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Huff & Sleeth, for appellant. J. N. Burks, J. B. Burks, and Pipkin & Swink, for respondent.

BLAND, P. J.

The defendant is engaged in mining and reducing lead ores, in St. Francois county, Mo., and has over its mine a large mill or reduction works. To generate steam to propel the machinery of the mill, it has a boiler or battery room located 40 or 50 feet from the mill. In this boiler room are three boilers, two of the Heine and one of the Babcock make, with separating or partition walls between. There is a space of about four feet between the rear of the Heine boilers and the rear brick wall of the engine room. The boilers are fed from the front, and cleaned from the back. Back of these two boilers is a stage or platform four feet above the ground, on which the men stand to clean out the boilers. Under this stage, immediately behind the boilers, is an ash pit six by eight feet, which is entered by a manhole under the stage, and on a level with the ground surface. The wall separating the ash pit and the fire chamber is called a "bridge wall," and is so constructed that the flames and smoke from the fire chambers pass over it, carrying the ashes from the furnace and dropping them into the ash pits. The ashes were allowed to accumulate in the pits for three weeks before they were cleaned. These ashes were very hot, and the usual and safe way to clean them out was to turn water into the pits and cool them down, and then shovel them out with a long-handled shovel. On August 11, 1901 (which was Sunday) Frank Hunt, plaintiff's husband, a newly employed hand, with J. A. Beaumont, was directed to take the ashes out of one of these pits. Hunt entered the pit through the manhole, a hose was handed to him by Beaumont, water was turned on, and in a few minutes Hunt came out of the manhole so badly burned and scalded that he died on the following Wednesday.

Plaintiff, who is Hunt's widow, sued to recover damages sustained by reason of the death of her husband, which she alleges was occasioned "solely by the negligence, carelessness, and recklessness of the defendant company, in that it negligently failed to furnish and provide him a reasonably safe place in which to work; negligently failed to have the ash pit and the ashes therein sufficiently cooled before directing said Hunt to enter the ash pit; negligently caused the water to be turned into the pit while the ashes were hot, and negligently ordered said Hunt into a dangerous and unsafe place to work, knowing at the time he was not familiar with the work required of him; negligently employed and retained in its employ incompetent and inexperienced help to assist said Hunt, and negligently and knowingly retained in its employ, as foreman of said work, the aforesaid Sherin, who was incompetent, inexperienced, and unfamiliar with the work required of him." She further alleges "that defendant knew of the unsafe and dangerous condition of said pit; that it was unsafe for her husband to enter the same; knew that the colaborers with Hunt were inexperienced and incompetent, and, knowing these facts, retained them in its employ. And alleges that had defendant used due care and caution, such as was incumbent upon it, and provided a reasonably safe place for her husband to work, that he would not have been killed."

Defendant's answer was a general denial, and the following plea of contributory negligence: "Further answering, defendant alleges that plaintiff's husband was a man of mature years, good judgment, and a good degree of experience in life; that he well understood the business he was engaged in; that he knew whether it was safe for him to enter the place where he met with the accident that resulted in his death, notwithstanding which he, of his own volition, entered into the place where he received the injuries which resulted in his death; that he entered the same of his own accord, and without any command or direction from the defendant; wherefore defendant alleges that he assumed the risks attending such actions and conduct, and is therefore estopped from asserting any claim for the injuries, and prays judgment."

The new matter alleged in the answer was put at issue by a reply. The jury found for plaintiff, and awarded her $3,000 damages. After unavailing motions for new trial and in arrest of judgment, defendant appealed.

The evidence shows that John Cline was superintendent of the mill. He had under him two shift bosses, George R. Flack and Ike Meadows. Cline was out of the state on August 11, 1901, and Flack was discharging the duties of superintendent of the mill. Meadows did not appear on the scene. It was the custom, when it became necessary to clean out the boilers and ash pits, to select a Sunday for that purpose, and for the person who was put in charge of the cleaning to send to the mill boss for five or six hands to do the work. Some one who worked in the boiler room, and understood or was supposed to understand how the work of cleaning should be done, superintended the work by directing the men when and how to work. On the Sunday Frank Hunt was fatally injured, John Sherin was placed in charge of the men by Flack, and directed to scatter his men. Flack testified that it was Sherin's duty to put the men to work and show them how to do it, but that he had no authority to discharge them; that if a man disobeyed his orders all he could do would be to report the fact to the mill boss; that he was expected to look after the work; that if there was an inexperienced man in the bunch he was not to be put in a dangerous place; that the orders of the company were that no one in the employ of the company had any right to put a man where he would be in danger of getting hurt. There was other evidence to the effect that Sherin had authority to, and did, on the 11th day of August, superintend the cleaning of the boilers and ash pits, and directed the men where they should work.

Beaumont, a witness for plaintiff, testified that, while he was working in front of the batteries, Sherin came around and ordered him to go and help clean out one of the ash pits; that he went, and when he got there he found Frank Hunt; that he never...