Roe v. St. Louis Independent Packing Co.

• Decision Date: 06 January 1920
• Docket Number: No. 15761.,15761.
• Citation: 217 S.W. 335,203 Mo. App. 11
• Parties: ROE v. ST. LOUIS INDEPENDENT PACING CO.
• Court: Missouri Court of Appeals

217 S.W. 335

203 Mo. App. 11

ROE v. ST. LOUIS INDEPENDENT PACING CO.

No. 15761.

St. Louis Court of Appeals. Missouri.

January 6, 1920.

Rehearing Denied January 22, 1920.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

Action by Allen N. Roe, a minor, by Edward A. Roe, his next friend, against the St. Louis Independent Packing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John W. Drabelle and Watts, Gentry & Lee, all of St. Louis, for appellant.

Kelley & Stark, of St. Louis, for respondent.

BECKER, J.

This is an action for damages for personal injuries, brought by plaintiff, a minor, through his next friend, against the defendant packing company, for injuries sustained by falling into a thawing vat containing hot water, in the ice plant of the defendant, at a time when plaintiff, together with a number of other boys forming a class of instruction in the Young Men's Christian Association of St. Louis, was being taken through the defendant's plant by the instructor of his class.

At the close of plaintiff's case, upon the court indicating that it would give the jury a peremptory instruction to find for the defendant, plaintiff took an involuntary nonsuit, with leave to set same aside. In due course plaintiff filed his motion to set aside said involuntary nonsuit, and, upon same being overruled, plaintiff appeals.

It is not necessary for the purposes of this case to set out the pleadings or the contents thereof; it will suffice, after we have set forth the statement of facts, to briefly advert to the several assignments of negligence.

The record discloses that plaintiff, a minor of about the age of 15 years, in the month of July, 1916, was a member of the boy's department of the Young Men's Christian Association, and, together with a large number of boys about his own age, was a member of what is designated in said association as an Observation Class, the purpose of which was the instruction a the said boys by taking them to visit various manufacturing plants in the city of St. Louis, and thus enable them to see various processes of manufacture carried on.

The instructor in charge of the said class wrote to the general manager of the defendant company, requesting permission "to bring a group of about forty boys to go through your interesting plant," specifying the day on which it was intended to bring the boys. The general manager replied by letter to the effect that "it would be entirely satisfactory" to the defendant. Thereupon the instructor in charge of the class, together with his assistant, accompanied 61 boys to the manufacturing plant of the defendant, where the general manager furnished them with an employs; to show them through the different departments. After the boys had been shown through the cattle, hog, and sheep killing departments they were taken to the ice manufacturing plant owned and operated by the defendant, and particularly into a large room wherein, by machinery in connection therewith, ice was manufactured. This room was filled with cans covered with wooden tops, so arranged that the wooden tops or the cans formed what might be termed a continuous floor.

The process of making ice required that water be put into these cans, the wooden lids then placed upon them, and the water in the cans frozen. After the water had frozen solid in the cans, the wooden tops would be removed, and a chain from a crane would be hooked onto the can containing the frozen block of ice and the can hoisted into the air, and pushed to one end of the room, where the can would be submerged into the thawing vat or tank of hot water, which was built into the floor for the purpose of thawing the ice from the sides of the can so as to loosen it sufficiently so that the ice could be dumped from the can into a nearby chute leading to the storeroom.

The crane used for lifting the cans was suspended from an overhead rail, and was operated by one of the employés pushing it from place to place, as was necessary in carrying on the work.

According to the testimony most favorable to plaintiff, upon entering this ice room from the sunlight of out of doors one would experience difficulty in seeing distinctly any small opening in the floor, but that, after remaining in the room long enough for the eyes to become accustomed to the change, objects could be fairly well seen therein.

In making the tour around the plant the boys had proceeded, two by two in column file, and carrying out the general plan, as the boys filed into the ice room, the instructor, with perhaps the group of boys forming the first half of the column, proceeded across the ice room to the north end thereof, while the assistant instructor stayed near the door at the south entrance to the room with the remainder of the boys. It appears that though the instructor had on two previous occasions visited the plant with a group of boys he was not aware of the thawing vat in the floor of the room, of which, however, he testified that it was "off to one side of the path that I followed going to the end of the room. The hole or vat was about 8 or 10 feet from that pathway."

According to plaintiff's own testimony, when he entered the ice room by ascending three or four steps connecting with the door at the south end of the ice room, he walked across the room to the north end thereof to examine some pipes that were covered with ice, after which he started to return to the south end of the room, when he saw the crane coming along toward the pipes at the north end of the room. As the crane approached, he "ducked so it would pass over me"; that when he had gotten within a few feet of the south end of the room the "crane came back toward me from the north end. * * * When the crane got near me that time I ducked again and let it pass over me. * * * As I ducked, a stepped into the hot water. Before I stepped I did not see the hot water there. No one had told me that there was a tank of water there." When plaintiff first saw the crane approaching him the second time it was about 30 feet from him. The plaintiff further testified that there were windows at the north end of the room, and that he saw the windows and was able to see the crane and the wooden tops of the cans which formed the floor, but as to whether there were electric lights in the room, which were burning at the time (that these lights were burning in the ice room had been testified to by the instructor and the assistant instructor, who were witnesses for plaintiff), plaintiff stated:

"I saw no lights. I will not say there were none burning. * * * I am not sure about the lights. I didn't see any."

Plaintiff further testified that his eyesight was good.

There is no question but that the boy was badly burned, from his waist down, by the hot water.

As to the object of the visit to defendant's plant, the instructor testified that it was "purely educational, for the education of the boys themselves. * * * The class is conducted by the Young Men's Christian Association for the boys alone, and not for any advertising purpose of the plant itself." The assistant instructor testified:

"I did not go over there, nor did any of these boys go over to this plant for any benefit or profit in any way to the St. Louis Independent Packing Company. It was solely for the purpose of the education of the boys. The company did not derive any profit from it at all."

Plaintiff himself testified:

"I went to this plant with a group of boys from the Young Men's Christian Association for my own curiosity and benefit. I did not go for any business of the Independent Packing Company. Arrangements were made for me to go. I did not go there to buy anything or do any work for them."

The boy also testified:

"I was instructed to stay with Mr. Bevis (instructor) and Mr. Flory (assistant instructor)."

Examining plaintiff's petition, we find that the assignments of negligence are that —

"Said defendant, through its said watchman, knowing of the presence of said unguarded vat of scalding water, and knowing that, by reason of the dimly lighted condition of said room, and by reason of the lack of familiarity of the plaintiff, and the other boys composing said class, with the condition of said premises, there was danger that plaintiff and others would fall into said vat of hot water and be injured, negligently and carelessly conducted said class including the plaintiff, into said dimly lighted room and to a point where there was great...