Roberts v. The Kansas City Railways Co.

• Court: Kansas Court of Appeals
• Writing for the Court: BLAND, J.
• Citation: Roberts v. The Kansas City Railways Co., 228 S.W. 902, 204 Mo.App. 586 (Kan. App. 1920)
• Decision Date: 04 October 1920
• Parties: ELIZABETH ROBERTS, Respondent, v. THE KANSAS CITY RAILWAYS COMPANY, Appellant

228 S.W. 902

204 Mo.App. 586

ELIZABETH ROBERTS, Respondent, v. THE KANSAS CITY RAILWAYS COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 4, 1920

Appeal from Jackson County Circuit Court.--Hon. Willard P. Hall Judge.

AFFIRMED.

Judgment affirmed.

L. T Dryden, E. E. Ball and R. J. Higgins for appellant.

Gamble Kennard & Trusty for respondent.

OPINION

BLAND, J.

This is an action for the negligent killing of plaintiff's husband. Plaintiff recovered a verdict and judgment in the sum of $ 6500 and defendant has appealed.

The evidence shows that the deceased was employed as a boiler washer in defendant's power house located at 2nd Street and Grand Avenue, in Kansas City, Missouri. The boiler in which deceased was working at the time of his death was used to generate electricity in the operation of defendant's street railway. On the second floor where deceased was working there were a number of large boilers, numbered from 31 to 40. Deceased was working in the first, or boiler No. 31, of a battery of boilers numbered from 31 to 35. Each of these latter boilers had attached to it a "blow-off line" which ran downward and connected with another pipe, called the "main blow-off line," which was in turn connected by a pipe running downward to the "hot-well." Each blow-off line was connected to its boiler with valves. When these valves were closed the steam remained in the boiler but when a valve was open the steam would rush out and down through the blow-off line into the main blow-off line, thence in the "hot-well" and then to the sewer. But if the steam were allowed to escape from a boiler for more than half a minute, it was likely to back up through the pipes to the other boilers and if one were empty and the proper valve open, steam would rush into it. These boilers were blown down at least once a day and often a greater number of times, for they were blown down each time the water in them got high.

Two or three days before deceased was injured boiler No. 31 "had been taken down," that is, emptied of water and steam, to be cleaned. Foreman Henderson and an employee named Baker opened up the valves connecting the boiler with its blow-off line. Henderson opened the super-heater valve. After the boiler had been emptied Baker closed two of the valves but he did not close the super-heater valve which had been opened by Henderson. The boiler washer foreman was one Duncan. It was his duty before sending men into a boiler to clean the same to see that the valves were all closed so that no steam could escape into the boiler. Duncan sent deceased and another man named Watts into the boiler without examining the super-heater valve to see that it was closed. His excuse for not doing so was that he assumed that it was closed because nobody had any business to open it "except when you come to put a boiler back on the line," that is, when it was again fired up and necessity arose for opening it to blow down the live boiler. No one but a foreman had any right to turn these valves, and no person was allowed on the floor except defendant's employees. Duncan ordered deceased and Watts to enter boiler No. 31 for the purpose of cleaning it. About one-half an hour before the accident they had removed the caps of the super-heater tubes which were in the top of the boiler. This made an open connection between the inside of the super-heater tubes and the rest of the boiler. After deceased and Watts had been in the super-heater chamber about forty-five minutes Gunderson, the fireman on boiler No. 31, reported to his superior that he had high water in his boiler; Gunderson was then ordered by his superior to blow it down. Gunderson opened the blow-off valve and the angle valve and blew down the boiler. The boiler was carrying 185 pounds of steam. The valves were left open about two minutes. Five minutes later one of the boiler room employees heard deceased and Watts screaming and saw steam pouring out of the super-heater chamber into the boiler proper. Deceased was so badly scalded that he died afterwards. An investigation shortly after the accident showed that the super-heater valve on boiler No. 31 was wide open.

Plaintiff's cause of action was brought under section 5426, Revised Statutes 1909, and defendant contends that as deceased's death was caused by the negligence of a fellow servant there can be no recovery under said section. There is no longer any question but that a cause of action created by section 5434, Revised Statutes 1909, survives under section 5426, Revised Statutes 1909. [Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042.] That defendant was engaged in the work of operating a railroad within the meaning of section 5434, Revised Statutes 1909, there can be no question. [Callahan v. Mer. Bridge Terminal Ry. Co., 170 Mo. 473; Austin v. Chi. R. I. & P. Ry. Co., 220 F. 85; Hellriegel v. Dunham, et al., 192 Mo.App. 43, 179 S.W. 763.]

Complaint is made of plaintiff's instruction No. 1, which reads as follows:

"The court instructs the jury that under the law a master owes to a servant a non-delegable duty to exercise reasonable care to furnish the servant a reasonably safe place to work and also to keep such place reasonably safe, so long as it is occupied by the servant in the due performance of the service to his master; and in this case you are instructed that if from the evidence you find that on September 14, 1917, in defendant's power house at or near Second Street and Grand Avenue, in Kansas City, Missouri, plaintiff's husband, Ernest G. Roberts, was in the service of defendant, and that in the due performance of the duties of said service, he was inside of and engaged in cleaning or assisting to clean the super-heater of steam boiler No. 31, and that defendant, or any of its agents or servants, other than plaintiff's husband, carelessly and negligently caused or permitted the drain valve of said super-heater to be or remain opened, and that thereby steam from another of defendant's boilers entered and passed through said super-heater, and thereby scalded or burned him so that as the direct result thereof he died, then your verdict should be for the plaintiff."

It is insisted that the instruction is erroneous for the reason that the word "negligently" is not defined and that the instruction permitted recovery if any of defendant's servants permitted the valve to remain open instead of a servant who was acting within the scope of his employment. We think that it was not error in this case to fail to define the word "negligently" for the reason that defendant was guilty of negligence as a matter of law if the super-heater valve was permitted to remain open under the circumstances, and it was not necessary for the instruction to define negligence for the law itself declares that the act was negligent. [Haake v. Milling Co., 168 Mo.App. 177, 179, 153 S.W. 74.] In this case defendant was handling a dangerous agency, which if permitted to escape into the boiler, would probably scald to death anyone who might be therein. The uncontradicted evidence shows that it was the duty of Duncan to see that the valve was closed before ordering the boiler washers to enter the boiler for the purpose of cleaning the super-heater tubes. The evidence is likewise undisputed that Duncan failed to investigate to see if the super-heater valve was closed. We think under the circumstances reasonable minds would agree that the act of Duncan was negligent. Defendant was guilty of negligence, therefore, as a matter of law in permitting the valve to remain open under the circumstances. The instruction was less favorable to plaintiff than she was entitled to. The uncontradicted evidence shows who left the valve open and whose duty it was to see that it was closed. There was no evidence or inference from the evidence that the valve was permitted to remain open by any servant other than one charged with the duty of looking after it and keeping it closed. For these reasons it was unnecessary to submit to the jury the question as to whether the servant who permitted the valve to remain open was acting within the scope of his employment.

Complaint is made that the instruction defined defendant's duty and described such duty as a "non-delegable" duty. The use in an instruction of a technical word such as "non-delegable" is improper. However, if the instruction had left out that part telling the jury generally the duty the master owes the servant, it would have been a good instruction, for the reason that had the jury found the facts detailed therein, plaintiff was entitled to recover even if the general duty the master owes the servant was not explained to them. The jury having been required to find certain facts before they could find for the plaintiff and those facts being all the facts necessary for them to find, the first part of the instruction defining what is the general duty of the master toward the servant was mere surplusage, and we are unable to see how the use of the word "non-delegable" could have misled the jury. From what we have said there is nothing in the other objections made to the instruction.

Complaint is made of plaintiff's instruction No. 3, which is as follows:

"If you find for the plaintiff, then you should assess her damages at a sum equal to all pecuniary loss, which you believe and find from the evidence directly resulted to her if any, by the death of her husband, and in determining the amount of such damages, the law affords you no exact standard of measurement, but permits you to take into consideration the age of deceased, the condition of his health, his life expectancy, his earnings and earning capacity, the number and ages of the minor children of the marriage between plaintiff and deceased, and...