Nash v. Kansas City Hydraulic Press Brick Company
| Decision Date | 07 November 1904 |
| Parties | ORR NASH, Respondent, v. KANSAS CITY HYDRAULIC PRESS BRICK COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
AFFIRMED.
Judgment affirmed.
Harkless Crysler & Histed for appellant.
(1) The plaintiff was not entitled to recover under the evidence in this cause and the court should have so instructed the jury. Beekman v. Brewing Co., 98 Mo.App. 555; Watson v. Coal Co., 62 Mo.App. 356; Marshall v. Hay Press, 69 Mo.App. 256; Steinhauser v. Spraul, 127 Mo. 540. (2) But, in any event, if the case was to go to the jury at all, instruction numbered 1 given for the plaintiff was clearly erroneous, because it absolutely required the defendants to furnish the plaintiff a reasonably safe place to work and authorized a recovery if they did not do so, without regard to the question as to whether it was so reasonably safe as the nature and character of the business would permit. And was virtually an instruction told the jury to return a verdict for the plaintiff. Sinberg v. Falk Co., 98 Mo.App. 546; Bradley v. Railroad, 138 Mo. 293. (3) The issue submitted to the jury was wholly outside of the pleadings and no question of negligence pleaded was submitted. Pryor v. Railway, 85 Mo.App 367; Joacquin v. Railroad, 57 Mo.App. 320; McMananee v. Railroad, 135 Mo. 440.
Buckner & Grady for respondent.
(1) To entitle an appellant to have a demurrer to all of the evidence and testimony reviewed he must set it out in full. This question is too well settled to require the citation of authorities. (2) Instruction numbered 1 given for the plaintiff contained a correct statement of the law as applied to this case. Herdler v. Stove Co., 136 Mo. 3; Doyle v. Railroad, 140 Mo. 1; Donohue v. Kansas City, 136 Mo. 657; Sackewitz v. Mfg. Co., 78 Mo.App. 141; Scott v. Springfield, 81 Mo.App. 312; Thompson v. Railroad, 86 Mo.App. 144; Devore v Railroad, 86 Mo.App. 429; Zelar v. Water & Light Co., 92 Mo.App. 107; Connelly v. Ptg. Co., 166 Mo. 447; Duerst v. Stamping Co., 163 Mo. 607. (3) This rule requiring the master to furnish a reasonably safe place to work, applies to all cases where the place furnished is fixed and certain, as is true in the case at bar. The dark, underground cellar was fixed, certain and stationary. In respect to the third point in appellant's brief it is entirely without merit.
Action to recover damages for personal injuries resulting from the negligence of the defendant. The petition alleged that the defendant maintained and operated a plant for the manufacture of brick in which said plant it used certain hoppers or feeding bins in which dirt was thrown and rolled into fine dirt which fell below said hoppers or bins and then was caught up by certain cups fastened to an endless chain or belt, propelled by steam, and carried upward to a point where it was dumped into another hopper or bin. That these cups so fastened to said endless chain or belt are enclosed at the bottom by means of a shaft made of lumber. That said shaft and said cups on said endless chain or belt were so negligently built and constructed, kept and maintained that the same during the progress of running said machinery would become clogged and stopped at the bottom of said shaft by means of the dirt which would accumulate at said point. That the bottom of said shaft was under ground and so enclosed as to render the place exceedingly dark. That during the conduct and operation of said plant said shaft would frequently become stopped and clogged up so that the said cups on said endless belt or chain would stop and cease to move up or down and when it became stopped and clogged the only means provided for unstopping and starting said cups, in said shaft, was to descend into this underground place at the bottom of said shaft, and remove the obstruction from the bottom of said shaft which was attended with great danger. That the plaintiff had been engaged as a common laborer at said plant, and was unacquainted with the manner of operating said machinery, or the appliances used to unstop said machinery when clogged up, or the dangers attending said operation. That the plaintiff, as servant of said defendant, was required by defendant to clean out said obstruction and unclog said shaft and to start revolving the cups on said belt or endless chain, as aforesaid. And that he went down into said underground apartment as directed by said defendant and proceeded to remove said obstructions. That he opened the door to said shaft and with his shovel proceeded and undertook to remove said obstruction. That as said obstruction was removed said cups on said endless chain or belt began rapidly to revolve, catching said shovel and plaintiff's hand with such force as to tear from its socket the little finger of the left hand, and badly lacerating the other fingers thereon. That defendant was negligent in that said apartment at the bottom of said shaft was not properly lighted so that plaintiff could see whilst working about said obstruction. There were many other allegations contained in the petition which we need not set forth.
The answer consisted of a general denial to which was added the pleas of contributory negligence and assumption of the risk. There was a trial by a jury and at the conclusion of all the evidence the defendant interposed a demurrer thereto which was by the court denied.
When a case is brought here by appeal or writ of error and the defendant assigns for error the action of the trial court in denying a demurrer interposed by him to the evidence adduced by the plaintiff in that court we will not consider such assignment unless the whole evidence is set out in haec verba in the abstract. This rule has been long established and steadily observed. [Goodson v. Railroad, 23 Mo.App. 76; Meriwether v. Howe, 48 Mo.App. 148, 152; Doherty v. Noble, 138 Mo. 25, 39 S.W. 458.] The abstract in the present case presents a number of excerpts of the evidence taken from the bill of exceptions and mingled with statements of the substance of other parts of it, or with defendant's conclusion as to what such other parts of it conduces to prove. The abstract, therefore, does not present the entire evidence, and accordingly we can not review the actions of the trial court on the demurrer.
The defendant contends that the court erred in giving an instruction for the plaintiff which told the jury that if it "shall believe from the evidence in this case that the plaintiff was an employee of the defendant, and that he was engaged in feeding one of the defendant's bins at its brick factory, and that while so engaged the machinery conveying the dirt up to the bin became clogged up and stopped and it became necessary for the plaintiff to unstop the same, and that it was a part of his duty to do so, and in doing so he went down to the bottom part of said shaft for that purpose, and that at the bottom of said shaft it was dark and not a reasonably safe place to work, and the defendant knew of such conditions, and that while in the act of removing said obstruction, in a careful and prudent...
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