Nickel v. Columbia Paper Stock Co.

• Decision Date: 02 June 1902
• Parties: NICKEL v. COLUMBIA PAPER STOCK CO.
• Court: Missouri Court of Appeals

68 S.W. 955

95 Mo. App. 226

NICKEL v. COLUMBIA PAPER STOCK CO.

Court of Appeals at Kansas City, Missouri.

June 2, 1902.

MASTER AND SERVANT — ASSUMPTION OF RISK — NEGLIGENCE.

Plaintiff was employed in defendant's paper mill in assorting rags and old paper. The rags and paper were brought in in large sacks, and emptied onto the assorting tables. A sack containing old paper gathered from some hospital, dumped on the table where plaintiff worked, contained pieces of cotton saturated with blood and various medicines, and also pieces of decaying human flesh. These substances emitted an unbearable odor, and so poisoned plaintiff that she became violently sick. Held, that she did not assume the risk, and defendant was liable for the injury she sustained.

Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Action by Anna Nickel against the Columbia Paper Stock Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harkless, O'Grady & Crysler, for appellant. Elliott & Burnham, for respondent.

ELLISON, J.

This action is for personal injury alleged to have resulted to plaintiff from the negligence of defendant. The judgment in the trial court was for plaintiff.

The defendant was engaged in the business of manufacturing paper. In prosecuting its business, it had a branch house in Kansas City, Mo., where it bought, collected, cleaned, baled, and shipped old waste paper and rags to be manufactured into new paper. The general mode of carrying on the business in Kansas City was that defendant furnished sacks to various business institutions in Kansas City, where large quantities of waste paper accumulated. These were gathered at intervals by defendant's wagons. Various persons in the city would likewise bring sacks or bundles of paper and rags to defendant's place of business, and sell them to defendant. The paper was received by defendant on the ground floor of its building, and then carried to an upper floor, where it was sorted, and thrown into different receptacles provided. The sorting consisted, principally, in separating the kinds of paper thus brought in, fit for the manufacture of different kinds of new paper, and of separating such material as might not be fit for manufacture at all. Plaintiff was engaged, on the upper floor, with several other women, in doing this work. While so engaged there was brought to her from the lower floor, by the men in defendant's employ for that purpose, and dumped upon the table where plaintiff worked, a sack of old paper which had been gathered from some hospital. It contained pieces of cotton saturated with blood and with urine and various medicines. There were also pieces of decaying human flesh, emitting an unbearable odor. These substances so poisoned plaintiff that she became violently sick, and suffered the injury for which she instituted this action. The defendant's theory is that, conceding the foregoing, which, omitting unnecessary detail, are the facts as the evidence in plaintiff's behalf tended to show them, she has no case; that plaintiff's business, in which she voluntarily engaged, was to meet with such dangerous conditions as just described; that her employment was to inspect the paper, and that no right of action could accrue to her for an injury resulting from the ordinary prosecution of the thing she was hired to do; that she assumed the risk of such injurious consequences as happened to her. The plaintiff's theory is that defendant was guilty of negligence, either in gathering such poisonous material, or in not having it inspected before carrying it to plaintiff's table for sorting; that consequently she did not assume the risk of the act described.

The plaintiff did undoubtedly assume the ordinary risk of injury which would naturally or reasonably follow the character of employment in which she was engaged. Her work was not a cleanly work, nor was it free from the general risk of disease, — a risk which the defendant, as her employer, could not reasonably wholly provide against. For, with diligent circumspection on the part of defendant, there would still be risk of disease in such work. But these facts do not exculpate defendant from an affirmative act in putting upon plaintiff's work table a bundle of poisonous waste matter, gathered from a place where such waste matter might reasonably be expected to be found. If defendant had gathered waste material from a smallpox pest house, and placed on plaintiff's table, whereby she became diseased, could it be said that she assumed the risk of such conduct? The extraordinary character of the occurrence is enough to demonstrate that plaintiff should not be held to have assumed the risk of its happening. Schroeder v. Railway Co., 108 Mo. 322, 329, 18 S. W. 1094, 18 L. R. A. 827; Henry v. Railway Co., 109 Mo. 488, 19 S. W. 239. We cannot see how defendant can construct any reasonable theory of escape from the wrong done the plaintiff. If the foul and...