McHugh v. National Lead Co.

• Decision Date: 18 April 1945
• Docket Number: No. 1956.,1956.
• Citation: 60 F. Supp. 17
• Parties: McHUGH v. NATIONAL LEAD CO.
• Court: U.S. District Court — Eastern District of Missouri

60 F. Supp. 17

McHUGH v. NATIONAL LEAD CO.

No. 1956.

District Court, E. D. Missouri, E. D.

April 18, 1945.

Harvey B. Cox and George E. Heneghan, both of St. Louis, Mo., for plaintiff.

Moser, Marsalek & Dearing, and John S. Marsalek, all of St. Louis, Mo., for defendant.

HULEN, District Judge.

Plaintiff obtained a judgment against defendant, based on a jury verdict. This case is now before the court on defendant's motion for judgment in accordance with motion for directed verdict. Defendant's position is that the evidence failed to make a submissible case of negligence.

There is no substantial conflict on the controlling facts. Defendant employed Leonard Construction Company, an independent contractor, to install and erect a sulphur burner tank on its premises in St. Louis County, Missouri. The tank was completed about April 1, 1941. Defendant then started use of the tank. In "two or three weeks" defects developed which necessitated a rebuilding of the tank according to a changed design. Early in the morning of the fourth day of June, plaintiff's husband, engaged in removing brick work as a laborer and an employee of a sub-contractor who had been employed by Leonard Construction Company, was killed as a result of a gas explosion in the sulphur burner. The case was submitted on the theory that defendant was negligent in failing to designate or mark a certain pipe which led to the sulphur burner as a conveyor of natural gas.

The sulphur burner was cylindrical in shape, approximately thirty feet in height and fifteen feet in diameter. The inner construction was of brick checkerboard baffling. The burner was started by means of a gas burner attached to a gas pipe. The gas burner was inserted through an opening at the bottom of the construction. When the brick work of the burner had become sufficiently heated, the consumption of the sulphur was an automatic operation, furnishing its own heat, so the gas burner was removed, leaving the gas pipe connection exposed, the end about fifteen inches from the outside of the sulphur burner (see Plaintiff's Exhibit B and Defendant's Exhibit C). The flow of gas was controlled by a valve near the end of the pipe (see Exhibit C). There was a second valve on the wall some distance from the burner. Sulphur was fed to the burner from the top, passed down over the heated brick construction, was consumed, thereby producing sulphurdioxide, which was piped from the sulphur burner and was finally converted into sulphuric acid. After the burner had been heated and was in operation, hot spots developed near the top of the construction because of a defect in the design of the burner. William Edward Smith was general superintendent of construction and redesigning of the sulphur burner for the Leonard Construction Company. He testified that he had control over all the men engaged in the work. When the defect in the sulphur burner developed, Mr. Smith was still on the job.

After the sulphur burner was started in operation, Smith observed it to see "how it was getting along." When the hot spots developed, as a result of instructions from Mr. Smith, compressed air was brought to bear on the hot spots for protection and so it could operate until plans could be made to correct the defect. To correct the defect in the sulphur burner, a hole was made in the construction some fifteen feet from the floor so that workmen could enter the burner at that point and start there to remove brick work on the inside of the burner. When entrance was made, the temperature on the inside of the burner was found too high to permit workmen to remain inside the burner for any length of time. To remedy this condition, Mr. Smith ordered one of the workmen to disconnect the compressed air hose which had been used to play on the hot spots and run air into the hole made about fifteen feet from the floor, and to insert the air hose into the bottom of the burner. The air hose came from a connection in an adjoining building to the east of the one in which the sulphur burner was located. The evidence does not indicate definitely who made the connection, but shortly after Mr. Smith had authorized the air hose to be inserted at the bottom of the sulphur tank, an employee of the Leonard Construction Company, or one of its subcontractors, attached the air hose onto the gas pipe, used for the gas burner. It had no marking to indicate it was a gas pipe. The gas was odorless. The hose was then inserted into the hole at the bottom of the sulphur tank and the valve on the gas line opened. Soon thereafter there was an explosion. Plaintiff's husband was outside the gas burner on a scaffold from which entrance was made to the manhole fifteen feet from the floor. The explosion caused deceased to be thrown from the scaffold, resulting in injury which caused his death. There is no evidence that the defendant's employees were in any manner engaged or assisting in the repairs or that they controlled or had any right to control any of the workmen engaged in repairs, nor is there evidence that the defendant knew or had cause to know that the workmen, in correcting the defects of the sulphur burner, would have cause to insert an air hose in the bottom of the sulphur tank. Mr. Smith testified that as a part of the original work on the sulphur burner the gas pipe was installed and connected to the gas burner. He knew where the gas pipe was located by which the gas burner was used to start the sulphur burner. The evidence does not show whether the workmen who were engaged in correcting the defects in the sulphur burner were the same as those who engaged in its original construction. There is no evidence that a sulphur burner of the character installed by the Leonard Construction Company had ever been installed on defendant's premises before, consequently there is no evidence that the repair being made at the time of the accident or the procedure used in making it had ever been resorted to before in its plant. There is no evidence that compressed air had ever before been found necessary to cool the sulphur burner in making repairs, consequently there is no evidence that there ever had or would have been use for a compressed air pipe in the repairs but for the failure of this particular sulphur burner to operate properly, plus the particular character of the repairs required. Even then, compressed air was not necessary in the procedure of making the repairs, but only became useful as a means of expediting the repairs by cooling the sulphur burner sooner than it would otherwise. Compressed air was used in the sulphur burner operation but it was inserted at the top of the burner along with the sulphur and to expedite its combustion.

Under these facts, it is the position of defendant that it cannot be held liable, because the death of plaintiff's husband occurred in such a manner that it could not reasonably have been anticipated and would not have happened but for an exceptional combination of circumstances.

Actionable negligence consists of three essential elements, namely a duty or obligation of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and injury proximately resulting from the failure. What duty did defendant owe the deceased under the circumstances of this case?

The following statement is from Corpus Juris, Volume 45, page 837: "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers."

A case cited in plaintiff's brief states the applicable rule as follows: "* * * but the master must warn the servant of all dangers to which he will be exposed in the course of the employment, except those which the servant may be deemed to have foreseen as necessarily incidental to the employment in which he engages, or which may be open and obvious to a person of experience and reasonable understanding, and except also such as the master cannot be deemed to have foreseen." Marsanick v. Luechtefeld, Mo.App., 157 S.W.2d 537, 541.

Deceased, at the time of the injury resulting in death, was on the premises of the defendant at the implied invitation of the latter to perform services for it. Under these circumstances, he became an invitee, and under the Missouri rule defendant owed him the duty to use ordinary care to prevent his injury and furnish him a safe place to work. Cash v. Sonken-Galamba Co., 1929, 322 Mo. 349, 17 S.W.2d 927, loc. cit. 929. Generally speaking, defendant would be liable for injury occasioned by any unsafe condition of the premises encountered in the work, which was known to the defendant, but unknown to the deceased. Feldewerth v. Great Eastern Oil Co., Mo.App.1941, 149 S.W.2d 410, loc. cit. 413. Some of the cases hold the measure of defendant's liability is its superior knowledge of the unsafe condition and danger therefrom to the injured party. Vogt v. Wurmb, 1927, 318 Mo. 471, 300 S.W. 278; Stein v. Battenfeld Oil & Grease Co., 1931, 327 Mo. 804, 39 S.W.2d 345; 44 A.L.R. 988.

The rule of law upon which defendant relies has been uniformly recognized by the appellate courts in Missouri. It is that defendant cannot be held liable for negligence for failure to take precautionary measures to prevent an injury, which if taken would have prevented it, when resultant injury could not reasonably have been foreseen and would not have happened unless under exceptional circumstances. The question is not whether the accident might have been avoided, if defendant had anticipated its occurrence, but whether taking the circumstances as they existed, defendant was negligent in failing to anticipate and provide against the occurrence. The law will not hold defendant liable for an injury that could not reasonably be anticipated and guarded against by the exercise of ordinary care. In such case, insofar as defendant is concerned, the injured party assumed the risk. If the injury is not one which could reasonably have been anticipated...