Hutchcraft v. Laclede Gaslight Co

• Decision Date: 12 March 1926
• Docket Number: No. 25430.,25430.
• Citation: 282 S.W. 38
• Parties: HUTCHCRAFT v. LACLEDE GASLIGHT CO.
• Court: Missouri Supreme Court

282 S.W. 38

HUTCHCRAFT v. LACLEDE GASLIGHT CO.

No. 25430.

Supreme Court of Missouri, Division No. 1.

March 12, 1926.

Motion for Rehearing Overruled April 12, 1926.

Appeal from St. Louis Circuit Court; Robert E. Hall, Judge.

Action by Charles Hutchcraft against the Laclede Gaslight Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Percy Werner, of St. Louis,.for appellant. John T. Manning and Charles E. Morrow, both of St. Louis, for respondent.

LINDSAY, C.

Plaintiff sued for injuries done to his left eye, resulting in loss of sight of that eye and in total blindness; the sight of his right eye having been destroyed in childhood. He had a verdict and judgment for $15,000.

He was employed at the plant of defendant in the city of St. Louis, as a laborer, in loading coke into railroad cars, and had been so employed for several years prior to the time of his inquiry. The operation of loading was in charge of a foreman. The plant, or building in question, stood parallel with a railroad track. The building proper consisted of three stories resting upon iron trestle work, so that the floor of the first story was a little higher than the tops of the cars into which coke was loaded. Iron beams extended up into and through this story of the building. The conditions existing, and the events occurring on this floor, are those bearing upon the essential issues in this case. Upon this floor were five bins wherein coke was held ready to be loaded into cars. It appears that there were five varieties of coke, each variety having its appropriate bin. The bins were somewhat of hopper shape. Under the bottom of the bins passed a conveyor in the nature of an endless belt. At the bottom of each bin was a damper, which, when opened, permitted the coke to pass down onto the conveyor. Thence it was carried forward into a chute extending out of the side of the building and thence into the car. The damper was opened and closed by means of a lever. The method ordinarily pursued was to close the damper when a car had received its required amount. Sometimes a car was to be loaded with two varieties of coke, in which event the conveyor carried the coke from two of the bins, and the mixed varieties were brought to a single chute, and into the car.

On the occasion in question, a car was being loaded with egg coke and stove coke from bins designated as bin 1 and bin 2. Bin 1 was next to one end of the building. The conveyor was operated by power from a motor, situated near the other end of the building. From bin 1, where plaintiff was, to the motor, a passageway led, the only direct one, it appears, for passing directly from bin 1 to the motor. This passageway was 40 inches in height and 24 inches wide. It led through and between, on either side, a network of beams and "angle irons," forming a part of a permanent supporting structure of the building. Along the side of the bin and at a height of 3½ feet from the floor extended a flange of metal spoken of as a platform. The plaintiff, and others doing like work, ordinarily, or frequently, stood up on this flange to reach and operate the lever, which closed the damper: There were no steps leading down from this flange to the floor. Plaintiff's brother was also an employee of defendant, and appears to have been engaged at or near the car which was being loaded at the time in question. Defendant's foreman, superintending the loading, was not immediately near where plaintiff was, but knew the car was being loaded. When the car had received enough for its load, plaintiff's brother called to "shut her off." Thereupon the movement of the coke from bin 2 was stopped by closing the damper of that bin. Plaintiff next attempted to shut off bin 1 by means of the lever operating the damper. The damper did not close, and the coke continued to run from that bin.

The testimony for plaintiff was to the effect that bin 1 was defective, in that it was worn through near the bottom, and that the defect of the open place in it, which had existed for a considerable period, had been mended or patched with boards and wire to hold the coke in, and also that the damper on this occasion failed to close. The coke continued to move through the chute into the car. Plaintiff's brother again called to plaintiff to shut it off, and according to the testimony for plaintiff, the foreman called out, "Hurry up, shut her off," and again called : "Damn it, hurry up."

There were only two ways by which the movement of the coke could be shut off. One was to close the damper of the bin; the other was to stop the movement of the belt by turning off the power at the motor, which had to be done from the other end of the building, reached by going through the passageway that has been described. The plaintiff said that the point where he stood on the flange or platform at the side of the bin was about 4 feet away from the entrance of the passageway ; that the light was bad ; that in obedience to the call of the foreman, he jumped down from the platform, hurrying to go through the passageway and reach the motor ; that some coke had fallen down on the floor ; that when he jumped down, starting to run, he struck a piece of coke and "pitched right over on the side that way, and struck an angle iron thing," and cut and bruised his head over the left eye, and down for about an inch past the outer corner of the eye ; that it bled, and also blood come from his ear. The injury was received on October 1, 1919, at about 4 o'clock in the afternoon. He received, immediately afterward, some slight treatment at the plant from defendant's chemist, who washed his eye, and, it appears, used some iodine. On the following day, plaintiff went to his family physician, who afterward treated him. Plaintiff returned to work some four or five days after his injury, and thereafter worked more or less regularly, until about September, 1921, by which time his sight, which had been growing worse, was so far gone that he was unable to see his way about.

His original petition was filed November 19, 1921, and the cause was heard upon the fifth amended petition on November 19, 1923. That petition alleged negligence in several particulars: Failure to repair the damper after promising plaintiff to do so, when defendant knew or should have known that coke was falling on the floor, and that plaintiff would stumble over it when he undertook to use the passageway for the purpose of reaching the motor, where he was required to shut off the power; failure to furnish the plaintiff a reasonably safe place to work, when defendant knew or should have known that plaintiff was required to use the. passageway, and that loose coke had fallen on the floor, and the passageway was not reasonably safe as such; failure to furnish a reasonably safe place in which to work, in that defendant knew plaintiff was required to get on the platform to work the lever operating the damper, and knew plaintiff would be compelled to jump from the platform to get to the passageway leading to the end of the building to shut off the power, and to do so quickly, and failure to warn plaintiff of the danger as long as coke was on said floor ; failure to furnish plaintiff with reasonably safe appliances with which to do his work, in that defendant knew plaintiff was compelled to get on the platform to work the lever, and that the platform was about 4 feet above the floor, knowing that plaintiff would be compelled to get down from the platform, and failure to furnish a ladder or steps, and in ordering the plaintiff to jump therefrom ; failure to furnish plaintiff a reasonably safe place to work, in that the place was dark and not sufficiently lighted, when defendant knew or should have known that the passageway was obstructed with pieces of loose coke, which had fallen by reason of the broken damper, and that this, because of insufficient light, was calculated to cause plaintiff to stumble and fall in hurrying to shut off the power. The answer was a general denial, a plea of contributory negligence of plaintiff in failing to stoop so as to pass under the angle iron, and a plea of the execution by him of a written agreement of release.

The reply, verified by the plaintiff, was a general denial, and, as to the release, a denial that the plaintiff had received any consideration therefor, and a denial that plaintiff executed the paper referred to in the answer. Plaintiff further averred in the reply that he had no recollection of placing his mark on the paper referred to; that he was illiterate and ignorant and could neither read nor write ; that at the time he was totally blind in his right eye, and the sight of his left eye so impaired that he could not see small objects such as writing ; that a short time after his injuries he was requested by defendant's agents to make a statement of the manner in which he received his injuries; that he told them the manner in which his injuries occurred ; that they pretended to write down such statements correctly ; that he has no recollection of ever placing his mark as a signature to any paper, and he denied that he executed such paper, but averred that if his mark is attached to such paper, the same was procured by the false and fraudulent representation that such paper was merely a statement of the manner in which he was injured.

The defendant insists that error was committed in refusing to give the peremptory instruction offered, directing a verdict. The contention is that there was a failure to show actionable negligence, or injury causing the loss of sight; that what happened was a pure accident, and, alternatively, that if plaintiff had a cause of action, he had executed a valid release.

For the purpose of the demurrer, the evidence for plaintiff is to be considered, is to be accepted as true, and he is to be given the benefit of every reasonable inference to be drawn therefrom. It is argued that there was a failure to show there was a...