Nowotny v. St. Louis Brewing Ass'n

• Decision Date: 03 November 1914
• Docket Number: No. 13759.,13759.
• Citation: 171 S.W. 941
• Parties: NOWOTNY v. ST. LOUIS BREWING ASS'N.
• Court: Missouri Court of Appeals

171 S.W. 941

NOWOTNY v. ST. LOUIS BREWING ASS'N.

No. 13759.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

Rehearing Denied December 8, 1914.

1. MASTER AND SERVANT (§ 278) — ACTIONS FOR DEATH — SUFFICIENCY OF EVIDENCE.

In an action for the death of an employé in a brewery, caused by the explosion of an ammonia tank, liberating fumes, from which he died, evidence held to support the allegations that the tank was old, worn, weak, and defective, and thereby unsafe and dangerous, and that the exercise of ordinary care on defendant's part would have revealed its condition.

2. MASTER AND SERVANT (§ 124) — LIABILITY FOR INJURIES — DUTY TO INSPECT.

The duty resting upon a master to inspect and to make such examinations and tests at reasonable intervals as may be reasonably necessary to ascertain the condition of the place where, or the instrumentality with which, the servant is required to work is an affirmative and continuing duty.

3. MASTER AND SERVANT (§ 226) — LIABILITY FOR INJURIES — ASSUMPTION OF RISK.

While an employé in a brewery assumed the risk ordinarily incident to the employment after the performance of the duty of inspection enjoined by law upon the employer, he did not assume the risk of injury from the explosion of an ammonia tank arising from the employer's negligent failure to inspect the tank, where it was not part of the employé's duty to make such inspection.

4. MASTER AND SERVANT (§ 289) — ACTIONS FOR INJURIES — QUESTIONS FOR JURY.

In an action for the death of an employé in a brewery, caused by the explosion of an ammonia tank, his negligence was a question for the jury, even though such tank was so closed off from the remainder of the refrigerating system, when such employé took complete charge and control of the engine room and machinery shortly before the accident, that it could not explode, and that the employé was so informed, where there was nothing to show that he had any cause to suspect that it was dangerous to change the valves in the tank, thereby subjecting it to the usual pressure when in use, if necessary or proper in his judgment, especially where it appeared that, though he was in charge of the engine room, others had access thereto and were in the room during the evening prior to the explosion.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Josephine Nowotny against the St. Louis Brewing Association. From a judgment for plaintiff, defendant appeals. Affirmed.

Edward C. Kehr, of St. Louis, for appellant. Chas. E. Morrow, of St. Louis, for respondent.

ALLEN, J.

This is an action brought by plaintiff to recover damages for the death of her husband, alleged to have been caused by the negligence of defendant. There was a verdict and judgment for plaintiff, and the defendant appeals.

On and prior to January 5, 1909, defendant owned and operated a brewery in the city of St. Louis, in connection with which it operated a refrigerating system. On the day aforesaid, plaintiff's husband, Joseph Nowotny, was in the employ of the defendant as an engineer, and, while he was engaged in the line of his employment in the engine room of defendant's brewery an ammonia tank or receiver, located in said engine room and constituting a part of the defendant's said refrigerating system, exploded, whereby he received injuries, from which he died on January 12, 1909.

The negligence charged in the petition is that the ammonia tank was "old, worn, thin weak, and defective," and was not provided with a safety valve, by reason whereof it was unsafe and dangerous for use, and which defendant knew, or by the exercise of ordinary care would have known, and by reason whereof it was caused to explode.

The answer is a general denial, together with a plea of assumption of risk and a plea to the effect that when the deceased began work upon the evening in question, and the tank was placed in his control, it was closed off from the remainder of the refrigerating system, and that a relief valve upon it had been opened to empty its contents, of which he was informed, and that in such condition an explosion was impossible, and any subsequent change in the condition of the tank, whereby the explosion became possible, was a negligent act of the deceased, "who thereby brought about or directly contributed to bring about the injuries of which the plaintiff complains." The reply is conventional.

The evidence discloses that Nowotny went to work at about 3 o'clock on the evening of January 7, 1909, having charge of defendant's engine room in its brewery in which the ammonia tank in question was located; that shortly before 8 o'clock of that evening, while he was alone in this room, the tank exploded, causing ammonia fumes to escape into the room, and that he was fatally injured by inhaling such fumes. It appears that the tank, which was about 7 feet in length and 14½ inches in diameter, was made of steel of the thickness of 1½ inches, and was connected by pipes with the remainder of the refrigerating system. It was equipped with an inlet valve, an outlet valve, and what is called a "pumping-out" valve. It had no safety valve, or other like appliance, to relieve the pressure in case the same should become dangerously great.

The evidence further discloses that the defendant had purchased and installed this tank in its said place of business in 1883, and that it had been in constant operation from that time up to the day of the injury, with the exception of a period of about five months. The last-mentioned period was in the year preceding the accident, during which time it was in a shed, having been again put in operation about two weeks prior to its explosion. Though the tank had been tested when new,...