Omans v. Hammond Packing Co.
| Decision Date | 05 December 1910 |
| Citation | 132 S.W. 283,151 Mo.App. 557 |
| Parties | RAY H. OMANS, Respondent, v. HAMMOND PACKING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.
Judgment affirmed.
O. C Mosman and Vinton Pike for appellant.
(1) Plaintiff was a man of more than ordinary intelligence. He was "college bred." He knew too well how to construct a theory of a that is, to claim that he was ignorant of the nature and effect of the substance he was required to use in removing grease and dirt from wood and iron implements. It is true, he swears he did not know; but he could with little more effrontery have said he did not know hot water would scald. Berry v White Lead, etc., 51 N.Y.S. 602; Bollington v Louisville, etc., (Ky.), 100 S.W. 850; Brazil, etc., v. Gaffney, 4 L.R.A. 850 and note; Lawless v. Gas Light Co., 72 Mo.App. 679; DeLozier v. Kentucky L. Co., 18 S.W. 451. (2) Plaintiff's legal proposition lacks an essential element. He says he was set to work with a dangerous substance, unwarned, and did not himself know the danger. But defendant did not know of his alleged ignorance. Defendant had the right to assume that plaintiff, who appeared to have the accomplishments of a man of collegiate education, possessed common intelligence and knew the danger of handling caustic soda, or lye, or potash, or lime, or hot water. Plaintiff was not obviously, or by notice to defendant, ignorant, nor a child. (3) Plaintiff was a preacher's son and was taken to a college town to be educated, "fitted for a position in life and to be taught a trade" (31). Six years must have enabled him (beginning at 18 years of age) to take in the whole curriculum. It is a reflection on his alma mater and his natural parents for him to claim that they had not taught him that dirt, grease and corruption must have something besides warm water to remove them from kettles, hooks, "racks" and cars. The master, unless reasonably charged with knowledge to the contrary, may assume that the servant is possessed of ordinary intelligence. Dresser's Employers' Liability, 457, sec. 98; Ruchinsky v. French, 168 Mass. 68; Robinska v. Lyman Mills, 174 Mass. 432; 1 Labatt, secs. 237, 239; Thompson v. Paper Co., 169 Mass. 416, 48 N.E. 757; Fones v. Phillips, 39 Ark. 17; Newbury v. Co., 100 Iowa 441, 69 N.W. 743.
Mytton & Parkinson for respondent.
(1) It is the master's duty to instruct his servant with reference to latent dangers which are known to the master or in the exercise of ordinary care should be known to him and which are unknown to the servant and would not be known to him in the performance of his work. Hill v. Drug Co., 140 Mo. 433. (2) Caustic soda, as far as we are familiar with it, and from the evidence, is used commercially by packing houses and rendering establishments. The plaintiff was required to and did prove by expert evidence, its properties and destructive effects when coming in contact with organic tissue. From the evidence of W. B. Kelling, the city chemist of the city of St. Joseph, it was learned upon the trial that caustic soda is used in making soap. The only other known use to which it is put with which the city chemist was familiar was the use made of it by the packing houses and rendering establishments. Not a single member of this court and not one man in a thousand would recognize and know what caustic soda was if it was put before him, and its chemical destructive properties are esoteric, known only to the chemists.
Plaintiff was an employee of defendant, working under direction of one of its foremen. His work consisted of carrying "provision racks for freight cars and washing out the cars." While so engaged he received an injury to one of his eyes, which he charges was caused by defendant's negligence, and for which he instituted this action. He recovered judgment in the trial court.
It appears that a substance known as caustic soda was used by defendant in the cleaning or washing of cars in which its meat products were shipped, and that a part of plaintiff's service was to wash such cars. That the soda was a substance very dangerous in use and if particles of it came in contact with human flesh, would inflict serious injury by burning. That defendant kept the soda in large solid blocks and on the day of plaintiff's injury defendant's foreman directed him ...
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