Naughton v. Laclede Gaslight Co.

• Decision Date: 19 February 1907
• Citation: 100 S.W. 1104,123 Mo. App. 192
• Parties: NAUGHTON v. LACLEDE GASLIGHT CO.
• Court: Missouri Court of Appeals

100 S.W. 1104

123 Mo. App. 192

NAUGHTON v. LACLEDE GASLIGHT CO.

St. Louis Court of Appeals. Missouri.

February 19, 1907.

1. MASTER AND SERVANT—DEATH OF SERVANT —QUESTIONS FOR JURY.

In an action for death of plaintiff's intestate while cleaning hot ashes from underneath defendant's boiler, evidence held to require submission to the jury of the questions of plaintiff's and defendant's negligence and whether plaintiff assumed the risk.

2. SAME—ASSUMED RISK.

Where plaintiff's intestate had never cleaned ashes from under a boiler before the time he was ordered to do so, and there was negligence on defendant's part in failing to warn intestate and to provide proper tools, etc., with which to work, intestate, by doing the work, did not assume the risk to which he was so exposed, nor waive the exercise of ordinary care by defendant to insure his safety.

3. SAME—EVIDENCE.

Where, in an action for death of plaintiff's intestate by burns received while removing hot ashes from underneath defendant's boiler, the petition alleged that the ashes were allowed to accumulate until the pit was full of them, and to remain there in an intensely hot state, rendering the pit a dangerous place to enter, and that intestate was ignorant of the construction of the pit, or the proper manner of cleaning it, but was ordered to do so by defendant's foreman, who knew that the ashes were so heated as to make the pit dangerous, evidence as to the depth of the ashes in the pit and their heated state was admissible to show that the pit was a dangerous place in which to work.

4. SAME—ISSUES AND PROOF.

Where, in an action for death of plaintiff's intestate by burns received while cleaning an ash pit underneath one of defendant's boilers, filled to a depth of three or four feet, there was no allegation of negligence in permitting the ashes to accumulate in the pit to too great a depth before deceased was ordered to remove them, it was improper to permit an expert to testify that it was not proper management to allow ashes to accumulate under a boiler to a depth of more than five or six inches.

5. APPEAL — REVIEW — PREJUDICIAL ERROR —ADMISSION OF EVIDENCE.

The admission of such evidence was prejudicial, though it was not carried into the instructions, and the court submitted no issue as to whether the ashes had been carelessly permitted by defendant to accumulate, and did not authorize a verdict for plaintiff on an affirmative finding of that fact.

Appeal from St. Louis Circuit Court; C. Orrick Bishop, Judge.

Action by Catherine Naughton against the Laclede Gaslight Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Seddon & Holland, for appellant. Dodge & Mulvihill, for respondent.

GOODE, J.

This plaintiff is the widow of Patrick Naughton, deceased. While removing ashes from under a boiler in defendant's gas factory, her husband was burned so badly that he died four days afterwards. This action was instituted to recover damages on account of his death, caused, it is charged, by defendant's negligence. At one of its gas factories in St. Louis defendant had six boilers, about 21 feet in length, set side by side. Under each boiler was a furnace. These six furnaces were separated by brick walls 22 inches thick and 51 inches long. In the front or north end of each furnace was a fire box, with a cinder box beneath and a grate on top. Behind the fire box, and 51 inches back from the front end of the boiler, stood a brick wall, built across the boiler and to within about a foot of its convex under surface. This partition was called the "bridge wall." Immediately behind the bridge wall was an ash pit or cumbustion chamber. This compartment was 9 feet long, 6 feet wide, and 4½ feet in depth from the bottom of the boiler to the floor. Behind the ash pit was another transverse brick wall 2½ feet high, and behind it a chamber called the "mud drum," which was under the rear of the boiler and extended 9 feet to its south end. It was about 2 feet in depth. When the furnace was in blast the flames streamed from the fire box in front, through the ash chamber and mud drum, and thence to the flues in the rear of the boiler. The arrangement of the furnace and boiler will be understood from this cut:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The second chamber—that is, the ash pit or cumbustion chamber—would fill up with fine ashes carried by the draft from the fire box and dropped into it. Defendant had the ashes removed every six weeks, and testimony was received that this should have been done oftener, to the admission of which testimony an exception was saved. The ashes were very light and powdery, and, when stirred, made a fog in the pit, rendering it difficult to see a person or object by the light of a candle. The boiler under which plaintiffs' deceased husband was burned was an intermediate one; there being three furnaces on one side of it and two on the other. When a pit was to be cleaned the furnace in front remained without fire from 48 to 60 hours. The furnaces on the two sides of such pit were kept in blast continuously, and the heat from them would penetrate the side walls and keep the ashes hot in the middle pit. The ash chamber was shut off from the daylight, and was dark. The ashes in it were hot, "red hot" some of the witnesses said, and remained in that condition for as long as two months if the furnace on either side was kept burning. After the furnace in front of an ash pit had remained without fire for two days, or longer, one of defendant's employés would crawl over the grate bars, then over the bridge wall, and through the opening between said wall and the bottom of the boiler into the ash pit. Usually all the ashes that could be were dragged with a suitable tool out of the ash pit and into the mud drum. A man was then sent into the pit to shovel the remainder into the mud drum; but this method appears not to have been followed by the deceased and his fellow workman on the occasion of the fatality, probably because they had had no experience in doing such work and were ignorant of the safest way to do it. Water from a hose would be thrown on the ashes, until a crust was formed five or six inches thick and firm enough to support a man's weight when standing on a board laid on the surface of the crust. The workman who was to throw the ashes from the chamber onto the floor of the mud drum in the rear was...