Ruch v. Pryor

• Decision Date: 03 December 1917
• Docket Number: No. 12611.,12611.
• Citation: 199 S.W. 750
• Parties: RUCH v. PRYOR et al.
• Court: Missouri Court of Appeals

199 S.W. 750

RUCH v. PRYOR et al.

No. 12611.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Rehearing Denied December 31, 1917.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

"Not to be officially published."

Action by John E. Ruch against Edward B. Pryor and another, as receivers of the Wabash Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed.

J. L. Minnis and N. S. Brown, both of St. Louis, and O. C. Phillips, of Moberly, for appellants. Hunter & Chamier, of Moberly, for respondent.

TRIMBLE, J.

Plaintiff, while engaged in washing out a locomotive boiler by means of a nozzle and hose through which hot water was forced under pressure, was injured by the bursting or parting asunder of the hose, whereby he was knocked against some tools and ruptured and also scalded in certain places by the water. An action for damages based upon the federal Employers' Liability Act was brought, and was before this court on appeal. See 190 S. W. 1037. The judgment was reversed and the cause remanded for errors in the trial, but thereafter that suit was dismissed. The present suit is under the state law. There is no claim, however, that it should be otherwise, as there is no allegation bringing it within the federal law, and it does not appear that plaintiff was at the time engaged in interstate commerce. A verdict and judgment for $2,000 was obtained, and defendant has appealed.

The defendants construe the petition as charging only that water at an unusually high temperature and pressure was negligently sent through the hose, causing it at that time to disintegrate and rendering it at that time dangerous and unsafe; and they insist that the only construction to be placed upon plaintiff's testimony is that it was the unusual temperature and excessive pressure that caused the injury; and that therefore plaintiff's only cause of action, if there is any, is negligence of the character and in the manner above indicated. If this be true, then defendants' demurrer to the evidence should have been sustained, for there was no evidence of negligence in the sending of water at an unusually high temperature or pressure through the hose; and if plaintiff's testimony must be interpreted to mean that the temperature and pressure caused the hose to deteriorate at the time of the accident, then there could be no cause of action based upon a failure to furnish a reasonably safe appliance or to inspect the hose, since there was no time or opportunity for inspection between the proximate cause of the deterioration, namely, the sending of the water through the hose at an unusually high temperature and pressure, and the injury which occurred immediately thereafter. Nor could the failure to inspect or anything else, except the high temperature and pressure, be regarded as the proximate cause of the injury, if defendants' construction of the pleading and evidence be correct.

But neither the petition nor plaintiff's evidence can be confined within such narrow compass or subjected to such an interpretation. It is true the petition is long and alleges many acts of negligence, some of which are repeated, but it is clear that among them is the charge that the defendants "negligently and carelessly furnished plaintiff said hose with which to wash out said boilers, which hose was unfit, unsafe, and dangerous with said hot water and steam running through it, because weakened and injured by the hot water under high pressure which defendants continuously used in it a long time before the said accident, all of which caused said injury to plaintiff, as aforesaid, and all of which defendants, as such receivers, knew, or by the exercise of ordinary care could have known, long prior to said injury." And the petition contains the further charge that plaintiff was injured as a direct consequence of the negligence and carelessness of defendants "in negligently and carelessly failing to provide plaintiff * * * reasonably safe appliances * * * with which to work, * * * and in failing to make proper inspection of said hose and the appliances with which plaintiff was working." The petition further alleged that it was the duty of defendants to furnish plaintiff with reasonably safe appliances, tools, and machinery with which to work, and to make reasonable inspection thereof.

The evidence in plaintiff's behalf tends to show that plaintiff was a boiler washer, and for this purpose he was furnished a hose about an inch and a half in diameter and 40 or 50 feet in length. The nozzle was connected to the hose by a brass sleeve about 4 inches in length, with a clamp around the rubber on the outside. When plaintiff went to work on the night he was injured he observed the outside of the hose and the clamp and saw that it was tight, and, so far as could be ascertained from outward inspection, everything about the hose seemed to be all right. He was engaged in washing out a "mud ring" of the engine, holding the nozzle by the handle with his right hand; the mud ring being about 8 inches above the floor. The hose was lying on the floor and running back to the source of supply of hot water in another room. With regulating or furnishing this water plaintiff had nothing to do. That was attended to by another employé, the electrician, and the pressure was governed by an automatic regulator which fixed the minimum pressure at 80 pounds to the square inch and the maximum at 120 pounds; so that the pressure never would get above 120 pounds to the square inch, unless the governor got out of fix in some way.

While thus engaged in washing out the mud ring, with hot water running under pressure through the hose, it parted from the nozzle at or near the sleeve, and flew around, striking plaintiff with great force and injuring him as above stated. After picking himself up and attending temporarily to his hurts, plaintiff went back to the place and found the nozzle and sleeve still in the mud ring where he had held it, and the clamp around the hose was still in place and tight. But the surface of the brass sleeve where it had been on the inside of the hose was smeared with a black, soft, mushy waxlike stuff corresponding to the condition of the material on the inside of the hose, which was also soft, mushy, gummy, and with the strings therein all pulled out.

The evidence is that continued use of hot water in contact with rubber has a tendency to soften it, and that hot brass would have the same effect; that the effect of hot water and pressure in a hose has a...