Phares v. Century Electric Co.

• Decision Date: 17 April 1935
• Citation: 82 S.W.2d 91,336 Mo. 961
• Parties: George Washington Phares v. Century Electric Company, a Corporation, Appellant
• Court: Missouri Supreme Court

82 S.W.2d 91

336 Mo. 961

George Washington Phares v. Century Electric Company, a Corporation, Appellant

Supreme Court of Missouri

April 17, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Reversed and remanded.

Wayne Ely, Tom Ely, Jr., and S. P. McChesney for appellant.

(1) Defendant's Instruction A, in the nature of a demurrer to the evidence, should have been given at the close of plaintiff's case. (a) Plaintiff's evidence shows that he was thoroughly familiar with the operation of the furnaces and cognizant of the danger, if any there was; that he had been operating the furnace for eight months or more, during which time he had loaded and reloaded them daily; that when he first began the employment he was told not to load one furnace without stopping the one adjoining; that it was his duty to turn the electric current on and off as occasion demanded; and that he failed to turn the current off on the occasion complained of. Therefore, he was guilty of negligence per se and cannot recover. George v St. Louis Mfg. Co., 159 Mo. 333, 59 S.W. 1097; Nugent v. Kauffman Milling Co., 131 Mo. 241, 33 S.W 428; Knoles v. Southwestern Bell Tel. Co., 265 S.W. 1005; Porter v. Railroad Co., 71 Mo. 66; Pohlman v. Am. Car & Foundry Co., 123 Mo.App. 219, 100 S.W. 544; Grief v. Natl. Lead Co., 274 S.W. 83; Clark v. Wheelock, 293 S.W. 456; Hirsch v. Freund Bros. Bread Co., 150 Mo.App. 162, 129 S.W. 1060; Rogers v. Tegarden Packing Co., 185 Mo.App. 99, 170 S.W. 675. (2) Defendant's Instruction B, in the nature of a demurrer to the evidence at the close of the whole case, should have been given. George v. St. Louis Mfg. Co., 159 Mo. 333, 59 S.W. 1097; Nugent v. Kauffman Milling Co., 131 Mo. 241, 33 S.W. 428; Knoles v. Southwestern Bell Tel. Co., 265 S.W. 1005; Porter v. Railroad Co., 71 Mo. 66; Pohlman v. Am. Car & Foundry Co., 123 Mo.App. 219, 100 S.W. 544; Grief v. Natl. Lead Co., 274 S.W. 83; Clark v. Wheelock, 293 S.W. 456; Hirsch v. Freund Bros. Bread Co., 150 Mo.App. 162, 129 S.W. 1060; Rogers v. Tegarden Packing Co., 185 Mo.App. 99, 170 S.W. 675. (3) Instruction 7, given for plaintiff, is erroneous because it singles out the testimony of expert witnesses, and comments unfairly upon same. Brees v. Railroad, 4 S.W.2d 426; Spencer v. Railroad, 297 S.W. 353; Conduitt v. Trenton Gas & Elec. Co., 31 S.W.2d 21; Davis v. City of Independence, 49 S.W.2d 95.

John B. Dale and Mason & Flynn for respondent.

(1) Under Point I of its brief, page 27, defendant claims that a demurrer to the evidence should have been sustained because plaintiff, who inserted the electrode in furnace No. 2, could have made his place safe to work by turning off the power in the adjoining furnace No. 3. Our answer to this proposition is that he was forbidden by his foreman, who was present at the time, to turn off the power in No. 3, and ordered to go ahead with his work of inserting the electrode in furnace No. 2 while No. 3 was still running. The first duty of the servant is to obey his master. Disobedience is not justified unless the danger recognized by the servant is so obvious, glaring and imminently threatening that a person of ordinary prudence would decline to obey the order. The giving of the order by the master or vice-principal is tantamount to an assurance that it can be safely executed. Jewell v. Bolt & Nut Co., 231 Mo. 203; Stephens v. Railroad Co., 96 Mo. 207; Keegan v. Kavanaugh, 62 Mo. 232; Storey v. Williams Bros., 50 S.W.2d 702; Kennedy v. Laclede Gas Light Co., 215 Mo. 704; Huskey v. Heine Safety Boiler Co., 192 Mo.App. 377, affirmed 188 S.W. 101; Macklin v. Fogel Construction Co., 31 S.W.2d 17. (a) Plaintiff was not guilty of contributory negligence in obeying the aforesaid order of his foreman. He was no electrician. He did not know that the current of electricity with which the electrode in furnace No. 3 was charged was so dangerous as to make injury practically certain, or that it was dangerous at all, so far as electric shock was concerned. See authorities cited under 1, supra. (2) This case must be disposed of on appeal on the same theory on which it was tried below. St. Louis v. Wright Contracting Co., 210 Mo. 502; Kincaid v. Birt, 29 S.W.2d 98; Bibbs v. Fidelity Health & Acc. Co., 71 S.W.2d 764; Peppas v. H. Ehrlich & Sons Mfg. Co., 71 S.W.2d 821.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for personal injuries, alleged to have been caused by an electric shock. Plaintiff claimed to have been shocked while carrying out an order of his foreman to put an electrode in an electric furnace without turning off the power in the furnace next to it. Plaintiff obtained a verdict for $ 9,500, and from the judgment entered thereon, defendant has appealed.

Plaintiff's evidence was that he was injured, September, 1926, while working as a furnace tender in defendant's foundry. He had commenced work there in January, 1925, and worked about a year as a moulder's helper. He was then made a furnace tender and worked about three months on the night shift under Foreman Arthur Althaus. He then worked on the day shift for about six months before he was injured. His foreman at the time he was injured was Jack Pippen. Plaintiff tended three electric furnaces, designated as No. 1, No. 2 and No. 3. These furnaces were placed end to end about five feet part. No. 1 was on the west side, No. 3 on the east side and No. 2 in the center. The furnaces were round like a barrel, about four and one-half feet long, and rested on a frame above the floor. They were used for melting metal. It took from thirty to forty minutes to melt bronze and from forty-five to sixty minutes to melt brass. Metal was brought in a wheelbarrow and shoveled in a door in the center of the furnace. When melted it was poured out by turning the furnace over by means of a crank. To make the heat necessary to melt the metal, carbon electrodes, two and a half inches in diameter and about three feet long, where put in each end of the furnace and an electric current run through them. The are of the electricity between the ends of the electrodes in the center of the furnace created the heat. This current was turned on by a wall switch. When the metal began to melt, the furnaces were caused to rock by a motor, started by moving a lever. The rocking was to prevent the moulten metal from sticking to the sides of the furnace. The ends of the electrodes gradually burned off and they were pushed farther into the furnace by turning a wheel. There was housing, with a water jacket, around the electrodes to keep them from burning too fast. When the electrodes were first put in they stuck out of the end of the housing eighteen to twenty inches.

It was usually necessary to put one new electrode in each furnace every day. Plaintiff was expected to watch them and put in new ones as they were needed. When he put in a new electrode, he would turn off the furnace, which required the new electrode, and also the one next to it, at the end where he would be working. He had been instructed to always do this when he began tending the furnaces. Foreman (Althaus), under whom he first worked, said: "When they were working on the furnace next to the one in operation, I had them shut off the power. . . . I told him not to make any repairs or put in an electrode until it was shut off on the wall. . . . That was the duty of the furnace tender." Plaintiff testified that it was his duty to turn off the furnaces "when the foreman wasn't around;" that when his foreman was present, he asked him about turning them off; and that he thought he had asked Foreman Pippen about it on other previous occasions. Plaintiff said: "It was my duty when the foreman wasn't around. . . . When he was present and had any occasion to shut the power off I would tell Mr. Pippen. He was the foreman and I had orders to do as my foreman told me." In a deposition, plaintiff had testified that "on every occasion except this one" he had gone ahead and turned it off himself. However, he said: "On this occasion I was hot, you know, and all sweaty, and it looked to me like this carbon, as well as I could see, in No. 3 stuck out farther than usual when we connected a new carbon; but I always shut it down anyway, but by him being present, standing there, my hepler busy getting out metal, he come to help me. When my helper was busy he would come and help me. When I was working on one of the furnaces he was watching the power. . . . Him being the foreman, I thought I would ask his permission."

About two P. M. on the day plaintiff was injured, he had put a new carbon in the west end of furnace No. 3. He then operated this furnace long enough to melt the metal in it and had it rocking, when he found the electrode burned off in no. 2. He shut it down to put in a new electrode. Furnace No. 1 was also burnt out at this time. Plaintiff said his foreman was present and he asked him: "Jack, don't you think we had better shut the power off No. 3 while putting the electrode in No. 2?" But that Foreman Pippen said "Hell, no; we haven't got time; we already got two furnaces down, and I will watch you; go ahead." Plaintiff said that he then attempted to put the electrode in furnace No. 2 with furnace No. 3 rocking; that to do so would bring the end of the electrode sticking out from No. 3 so close to the end of the one he was putting into No. 2 that they would be practically together, "not over six inches apart;" that, while putting in the new electrode he was facing south with his right hand under the electrode and his left hand over it so that his left arm and shoulder would be nearest to furnace No. 3; and that while he was in that position, the ends of the electrodes came together so that he got a shock, which he said...