Roe v. St. Louis Independent Packing Company
| Decision Date | 06 January 1920 |
| Parties | ALLEN N. ROE, a minor, by EDWARD A. ROE, his next friend, Appellant, v. ST. LOUIS INDEPENDENT PACKING COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon William T. Jones, Judge.
Judgment affirmed.
John W Drabelle and Watts, Gentry & Lee for appellant.
(1) Even if plaintiff was a bare licensee on the defendant's premises, as to whom defendant did not owe the duty to keep its premises in reasonably safe condition, the court should not have non-suited him for the evidence tended to show that defendant actively injured him--led him into a trap by conducting him into a dangerous place and impliedly assuring him that there was no danger and then, knowing he was on the brink of the hot water tank, running a crane right at him in a way calulated to make him fall into the vat of hot water. Under such circumstances, the duty to warn and to refrain from actively injuring him in a negligent manner after his presence was actively known, existed, and its breach was actionable. Barry v. Railroad, 92 N.Y. 289, 44 Am Rep. 377; Brinilson v. Railroad Co., 144 Wis. 614; Railroad Co. v. McDonald, 152 U.S. 262; Schmidt v. Mich., etc., Co., 159 Mich. 308; Morgan v. Railroad, 228 Mo. 56; Ahnefeld v. Railroad, 212 Mo. 280; Keim v. Gilmore & P. Railroad Co., 23 Idaho 511; Thompson v. Railway Co., 243 Mo. 336; Railway Co. v. Balthrop, 167 S.W. 246; M. K. & T. R. R. v. Schroetter, 134 S.W. 826; Hartman v. Muehlebach, 64 Mo.App. 565; Escanaba Mfg. Co. v. O'Donnell, 212 F. 648. (2) Plaintiff was not a bare licensee. He was an invitee. Mutual profit was to be had by defendant and plaintiff by reason of the visit plaintiff made to the plant. Hence defendant owed plaintiff the duty to exercise ordinary care for his safety; but it did not do so, and injury resulted. Such a duty toward an invitee always exists, and liability exists where its breach results in injury. Glaster v. Rothschild, 221 Mo. 180; Becherman v. Kortkamp Jewelry Co., 175 Mo.App. 279; Welch v. McAlister, 15 Mo.App. 492; Woods v. Railroad, 165 Mo.App. 192; Kean v. Schoening, 103 Mo.App. 77; Nephler v. Woodward, 200 Mo. 179. (3) The question of plaintiff's contributory negligence, pleaded in the answer, was for the jury under the evidence. The court could not declare as a matter of law that plaintiff was negligent in stepping into the hole. Beckerman v. Kortkamp Jewelry Co., 175 Mo.App. 279; Bennett v. Rothschild Bros. Hat Co., 144 Mo.App. 612; Lattimore v. Light and Power Co., 128 Mo.App. 37; Coffer v. Carthage, 200 Mo. 616. (4) A new trial should have been granted, and it was error to refuse to grant it.
Kelley & Starke for respondent.
(1) Plaintiff was a bare licensee and defendant owed him no duty except not to wantonly, wilfully or intentionally injure him. Kelly v. Benas, 217 Mo. 1, 9; Glaser v. Rothschild, 221 Mo. 180, 184; Barry v. Calvary Cemetery Assn., 106 Mo.App. 358, 365; Ward v. Kellog, 164 Mo.App. 81; Shaw v. Goldman, 116 Mo.App. 332, 340; Straub v. Soderer, 53 Mo. 38, 43; Davis v. Ringolsky, 143 Mo.App. 364, 370; Behre v. Hemp & Co., 191 S.W. 1038; 29 Cyc. (451 (B); Benson v. Baltimore Traction Co., 77 Md. 535; Weaver v. Carnegie Steel Co., 223 Pa. St. 238; Indian Refining Co. v. Mobley, 134 Ky. 822; Roche v. American Ice Co., 125 N.Y.S. 323; Norris v. Contracting Co., 206 Mass. 58; Fitzpatrick v. Glass Co., 61 N. J. L. 378; Weitzman v. Barber Asphalt Co., 190 N.Y. 452; O'Brien v. Railroad, 209 Mass. 449. (2) Although plaintiff had obtained permission to enter defendant's premises, it was to gratify plaintiff's own curiosity and for his sole benefit. Defendant derived no advantage or benefit whatsoever therefrom. Plaintiff, therefore, was a bare licensee and not an invitee. (See authorities cited under Point 1.) (3) The record in his case shows that plaintiff was guilty of contributory negligence, which bars a recovery in this case, in that he failed to obey instructions and keep in the company of his instructors, Bevis and Flory, who obtained permission from defendant to take plaintiff and the other boys through defendant's plant. (4) Plaintiff's amended petition fails to state a cause of action in that, after alleging facts to show that plaintiff was a licensee, it fails to allege any facts showing, or tending to show, that defendant wantonly, wilfully or intentionally did any act or thing to injure plaintiff. Kelly v. Benas, 217 Mo. 1, 9; Glaser v. Rothschild, 221 Mo. 180, 184-5; Ward v. Kellog, 164 Mo.App. 81. (5) There being neither allegation nor proof of wantonness or wilfulness or intentional injury by the defendant, and it further appearing that plaintiff was injured thorough his own contributory negligence, the action of the trial court giving a peremptory instruction for the defendant was proper. (6) The cases cited by the plaintiff where the humanitian doctrine was invoked are not in point for the reason that in the case at bar there was neither allegation or proof that defendant had the last clear chance to avoid the injury. Castle v. Wilson, 183 S.W. 1106; Wilder v. Railroad, 164 Mo App. 114, 120-1. (7) The cases cited by plaintiff, attempting to distinguish between active and passive negligence, are not entitled to any consideration because: (a) the Appellate Courts of Missouri have not recognized this distinction; (b) The decisions by courts in the States which recognize such distinction are not clear or harmonious; (c) such decisions have been criticized as illogical.
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 purpose 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 fifteen years, in the month of July, 1916, was a member of the boy's department of the Young Men's Christian Association, and tegether 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 of 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 sixty-one boys to the manufacturing plant of the defendant where the general manager furnished them an employee to show them through the different departments. After the boys had been shown through the cattle, hogs, 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 of 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 store room.
The crane used for lifting the cans was suspended from an overhead rail and was operated by one of the employees 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 sun light 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 formin 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...
To continue reading
Request your trial