Mitchell v. Polar Wave Ice & Fuel Co.
| Decision Date | 04 January 1921 |
| Docket Number | No. 16270.,16270. |
| Court | Missouri Court of Appeals |
| Parties | MITCHELL v. POLAR WAVE ICE & FUEL CO. |
Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.
Action by G. W. Mitchell against the Polar Wave ice & Fuel Company. Judgment for the plaintiff, and defendant appeals. Affirmed.
Holland, Rutledge & Lashly, of St. Louis, for appellant.
Albert E. Hausman, of St. Louis, for respondent.
This is an action for damages alleged to have been sustained by the plaintiff, by reason of an explosion of a tube in one of defendant's boilers, located at its plant in the city of St. Louis. The negligence alleged in the petition and relied upon for recovery is that the tube which burst had been leaking for some two days, and the defendant failed to discontinue the boiler, when it knew, or by the exercise of ordinary care would have known, that the said tube was in a defective condition and liable to burst. There were other acts of negligence alleged in the petition, but they were abandoned by plaintiff, and it will be unnecessary to notice them in this opinion.
The answer was a general denial, and a further plea that plaintiff, at the time he received his injuries, was in full charge and control of the room and appliances mentioned in his petition, and charged with the duty of keeping said room and appliances in a reasonably safe condition; that plaintiff was chief engineer in charge of this particular plant, and in full charge and control of all of the employés working therein, and that, if any employé in said plant was guilty of negligence, such was by law imputed to plaintiff.
The reply was a general denial.
Plaintiff recovered and defendant appeals.
Objection is made to the giving of certain instructions for plaintiff, but as the objections urged to these instructions are made upon the theory that the court should have sustained a demurrer to the evidence, by disposing of the question of whether or not the court should have sustained such demurrer to the evidence, we necessarily dispose of the objections made to the instructions given for the plaintiff.
Defendant operates several plants in the city of St. Louis. The general offices of the company are located on Olive street near Grand avenue. These different plants were under the superintending control of one Chamberlain, who is designated in the testimony as the general superintendent. Plaintiff's title was chief engineer at the plant where he received his injuries. Although this was his title, there seems to be some conflicting testimony as to just what his duties were. He had been in the employ of the defendant company for several years. He had been chief engineer at this plant for perhaps something like two years prior to his injuries. For some few weeks prior to the date of the accident in question, he was working on the roof of this plant superintending the construction of some condensers. In a room on the ground floor, which room was described by some witnesses as being something like 40 feet long and 30 feet wide, were located three large boilers; the one farthest east being known as No. 1, the next one toward the west being known as No. 2, and the next still farther west as No. 3.
The accident occurred on Tuesday, the 28th of March, 1916, about 10:30 a. m. Two men, Pfeil and Leahy, who were working under plaintiff's directions on the roof, had come down into the boiler room for the purpose of heating a large pipe, and opened the side door of boiler No. 1, but, discovering there was not enough heat there, they stepped around in front of this boiler. At about this time plaintiff came upon the scene, and noticed a leakage in this boiler, but before he had time to close it the explosion occurred. There being no question raised as to the amount of the verdict, it is unnecessary to set out in detail the injuries he received, There were two licensed engineers in immediate charge of these boilers, one Roberts, who was known as the day engineer, and Strutman, who was night engineer. Each worked twelve hours, and each was employed by Chamberlain, the general superintendent, who, at the time of employment, outlined their duties to them. Roberts had been day engineer for some time prior to the reasonably safe condition; that plaintiff was accident. Strutman had only been working for defendant about three nights before the accident happened. He testified that, about 1 o'clock on the Sunday night prior to the accident, he discovered the leaking tube, and that when he returned to work on Monday night he noticed the tube was still leaking. The portion of his testimony with reference to that we here set out:
He also stated that it was the duty of the engineer on watch to take off the boilers when they were in that condition. He states also that the first time he saw plaintiff after he went to work at this plant was in the city hospital; that, if he as night engineer or operating engineer found a leak, he was to report same to plaintiff or to Chamberlain. These were the instructions which he received from General Superintendent Chamberlain.
It seems that plaintiff would spend a portion of his time at this plant and a portion at another plant known as the Broadway plant. One Headen, who was working as fireman at the plant where the injury occurred, testified that he had also notified Roberts (under whom he was working) Monday morning that this tube was leaking. It appears that No. 3 boiler was not in use at " that time and that they were preparing No. 3 for use so that No. 1 could be cut off.
Plaintiff testified that the superintendent, Chamberlain, employed the night and day engineers, who in turn employed the firemen under them, and that plaintiff employed the pipe fitters; that Chamberlain not only employed the operating engineers, but discharged them when necessary as was his duty; that it was the usage and custom in that plant for the engineer in charge to take the boiler...
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