Kolbow v. Haynes-Langenburg Mfg. Co.

• Decision Date: 18 February 1928
• Docket Number: 26275
• Citation: 3 S.W.2d 226,318 Mo. 1243
• Parties: Edward P. Kolbow, Appellant, v. Haynes-Landenberg Manufacturing Co
• Court: Missouri Supreme Court

3 S.W.2d 226

318 Mo. 1243

Edward P. Kolbow, Appellant, v. Haynes-Landenberg Manufacturing Co

No. 26275

Supreme Court of Missouri

February 18, 1928

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Affirmed.

Otto O. Fickeissen, Irvine Mitchell and Diehm & Fickeissen for appellant.

(1) The place of employment need not be premises owned or continuously occupied by the master; it is sufficient if the place of injury be the place where the master directed the servant to do the work. 39 C. J. 423; Brann v. Brick Co., 288 S.W. 943; Bender v. Kroger Co., 310 Mo. 488; Clark v. Iron & Foundry Co., 234 Mo. 436. (2) It is the duty of the master to exercise ordinary care to provide a reasonably safe place for the servant to work and reasonably safe applicances with which to work. 39 C. J. 350 423; Baldwin v. Coffee Co., 202 Mo.App. 650; Boten v. Ice Co., 180 Mo.App. 101; Haggard v Southwest Railroad, 205 Mo.App. 7. (3) The actual conditions of employment of plaintiff in this case are defined by statute as being "especially dangerous." Sec. 6818, R. S. 1919. (4) A prior inspection by the master accentuates his duty to warn the servant of dangers actually discovered by such inspection or which might, in the exercise of due care, have been discovered by such inspection. 39 C. J. 492, sec. 605; McCarver v. Lead Co., 216 Mo.App. 381; Brann v. Brick Co., 288 S.W. 943.

John J. Nangle for respondent.

(1) The appellant must produce substantial evidence in support of his case to have the right to have same submitted to a jury. The "scintilla doctrine" is not recognized in Missouri. Beckemeier v. Riller, 296 S.W. 739; Keller v. Supply Co., 229 S.W. 173; Bushman v. Barlow, 292 S.W. 1039. (2) The appellant is entitled to any reasonable inferences that may be drawn from the substantial evidence. Keller v. Supply Co., 229 S.W. 173; Beckemeier v. Riller, 296 S.W. 739; Bushman v. Barlow, 292 S.W. 1039. (3) The third point made by the appellant is not a correct statement, as the statute in question has no application to this case, in that there was a total failure on the part of the appellant to prove that any of the elements enumerated or conditions mentioned in said Sec. 6818, R. S. 1919, was present in this case. (4) The case of McCarver v. Lead Co., 216 Mo.App. 370, is a mine case, involving entirely different questions from the instant case, and in said case there was a negligent order coupled with an assurance of safety to the employee.

OPINION

White, J.

Plaintiff, an employee of defendant, sued for damages on account of personal injuries. To plaintiff's evidence defendant filed a demurrer which, April 28, 1924, was sustained. Whereupon plaintiff took an involuntary nonsuit with leave, thereafter filed his motion for new trial which was overruled, and he appealed. The case was sent to the St. Louis Court of Appeals and for want of jurisdiction was transferred to this court.

The defendant conducted a manufacturing plant on Forest Park Boulevard, where it was engaged in renovating, assembling, repairing and cleaning furnaces and heating plants. The plaintiff was a sheet-metal worker employed by the defendant, and November 29, 1922, was ordered to go to a building, 4110 Louisiana Avenue, St. Louis, for the purpose of repairing a furnace and heating plant, located in the basement. He testified that he had been in the employ of the defendant about three months repairing furnaces at private residences, to which he was sent for the purpose; that it was the practice of the defendant to inspect repair jobs before sending out workmen. The inspector would make report and then workmen would be sent to make the repairs. In his words: "The foreman just turns over repair slips to us and we take the items that are on the repair slips, and if the items are not delivered we go to the stock room and take the balance of the material with us and go out to the job." On this occasion he was sent to the place mentioned, for the purpose of making repairs which the inspector had found to be necessary.

The instructions on the order which he got at that time were that the dust box and the standpipe were to be replaced; also a furnace elbow. Then he describes the job as follows:

"In commencing the work the outer casing and all the warm-air pipes are removed first; we take off this sheet metal casing and disconnect the hot-air pipes. I didn't do any repair work on that casing; the object in taking it off was to get to the interior of the furnace and to remove the defective parts of the furnace."

He said that after taking off the outer casing the next work was to remove heat drums and all the bolts on the top and bottom of the heat drums. Then he continued:

"To remove the standpipe it is customary to chisel all the old bolts off. We never salvage any of them. They are always chiseled off and replaced with new ones, due to the fact to save time. That is what I actually did in this case, and in that respect I followed the custom of the trade. To chisel off a bolt you use about an eighteen-inch chisel with a two-pound hammer, and you strike the head of the bolt a blow with your chisel. The effect of that upon the head of the bolt is that it just blows right off. The bolts, from the constant heat, crystallize, and it flies off.

"When the head flies off what happens to the standpipe? Well, at times, when they are made a trifle large, they sort of bulge out. . . . When I struck the standpipe, I don't know whether it was through a blow I hit the pipe or whether the hammer hit it, but something flew into my eye and I couldn't see what stuff went into my eye, and I closed my eyes and walked away from it at the time being."

He then testified that he finished his job, and went to the doctor, who had him come back the next day, when the doctor removed from his eye some hard particles which had got into it. The injury was painful, but from the evidence it does not appear that his sight was greatly impaired or his health seriously injured. The grounds of negligence upon which he relied for recovery were:

First: A violation of Sections 6817, 6818, Revised Statutes 1919.

Second: That the employer failed to furnish plaintiff a safe place to work, and had not warned plaintiff of danger of which the defendant should have known by inspection of the furnace to be repaired.

Third: That the place was insufficiently lighted.

Fourth: That it was customary to furnish goggles to one engaged in such repair work, and that the defendant negligently failed to furnish goggles.

I. Section 6817, Revised Statutes 1919, provides that every employer of labor engaged in carrying on a work which may produce illness or disease peculiar to the work or process carried on, or which subjects employees to danger of disease incident to such work, shall for the protection of employees adopt an approved and effective device "for the prevention of such industrial or occupational diseases as are incident to such work."

Section 6818, Revised Statutes 1919, provides the carrying on of any process or manufacture in which antimony, arsenic, etc., or "any poisonous chemicals, minerals, acids, fumes, vapors, gases or other substances are generated, . . . used or handled by employees in harmful quantities, or under harmful conditions, . . . are hereby declared to be especially dangerous to the health of the employees."

These sections are designed to protect employees against exposure to disease which are incident to the work called "occupational diseases," and any manufacturer or laborer in which certain poisonous substances are used, or with which an employee comes in contact, is declared to be dangerous to the health of the employees. The claim here is that the particles which got into the plaintiff's eye were crystallized soot, caused to be crystallized by the use of what plaintiff terms a soot remover. It is none of the articles specifically mentioned in Section 6818, and in order to be within the terms of either section it would have to come under the designation of "poisonous chemicals, minerals, acids, fumes, vapors, gases, or other substances."

Plaintiff testified:

"Before I went out there I had not been told anything about soot remover having been used in this furnace. I am not familiar with soot remover and I cannot tell what effect it would have on the eye; I am not a chemist."

As to the stuff which got into his eye, he said:

"From my experience with ordinary soot this was not ordinary soot that fell into my eye. . . .

"It appeared to me as though it was some sort of...