Schmidt v. Kansas City Distilling Co.

Citation1 S.W. 865,90 Mo. 284
PartiesSCHMIDT and Wife v. KANSAS CITY DISTILLING CO.
Decision Date15 November 1886
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson circuit court.

Action to recover damages for the death of plaintiffs' infant child. Judgment for plaintiffs. Defendant appeals.

Adams & Stubenranch, for respondents, Schmidt and another. Gage, Ladd & Small, for appellant, Kansas City Distilling Co.

HENRY, J.

The plaintiffs are husband and wife, and parents of a child, three years old, Louisa, whose death occurred November 2, 1883, upon the premises of the defendant; and plaintiffs allege that it was caused by the negligence of the defendant. The petition is as follows:

"Plaintiffs state that they are now, and were at and prior to the dates hereinafter mentioned, husband and wife, and father and mother of Louisa Schmidt, their child, born on the twenty-ninth day of October, 1879. Said Louisa Schmidt was killed in the manner hereinafter stated, and at the time of her death was a minor and unmarried. That the defendant now is, and was, at and prior to the date hereinafter mentioned, a business corporation, duly organized as such under and by virtue of the laws of the state of Missouri, and engaged in the business of buying and selling and refining grain, and for that purpose kept, and still keeps and maintains, distillery buildings; and, in connection with said buildings and in its business, defendant erected and maintained, and was at the time hereinafter stated using, a large number of steam-engines and boilers, to-wit, six, in the county of Jackson and state of Missouri, east of and near the city of Kansas. That the defendant, on and prior to the second day of November, 1882, kept and maintained an escape-pipe in connection with said boilers, for the purpose of blowing off hot water, debris, and steam from the same. Said pipe extended from the distillery, where the boilers were, under and across a traveled public road and highway, and terminated above ground in an open space about 60 feet north of said traveled public road. Through this pipe defendant, from time to time, as occasion required in its business, blew off and discharged hot and boiling water, debris, and steam from said boilers; and said water, steam, and debris were discharged and thrown upon open ground, and about 60 feet north of said traveled public road, and in the neighborhood and vicinity of several inhabited dwelling-houses along said road. At the end and outlet of the pipe, where the boiling water, debris, and steam were blown off and discharged, there was no fence, guard, signal, or protection of any kind, but the same was left exposed, open, and unguarded. Plaintiffs say defendant wrongfully and negligently kept and maintained said pipe, as aforesaid, and wrongfully and negligently left the end and outlet thereof, contiguous to said public road, unprotected, and in an exposed, open, and dangerous condition, and wrongfully and negligently, while said pipe was so unprotected, discharged from time to time, hot and boiling water, debris, and steam through the same onto the open ground near said road and highway and dwelling-houses; that on the second day of November, 1883, while defendant so kept and maintained said pipe, for the purposes and in the manner aforesaid, Louisa Schmidt, the child of plaintiffs, without fault of plaintiffs, went to the end and outlet of said pipe, near said road, and while there, on the day aforesaid, the defendant suddenly, without having given any signal or warning of any kind, blew out hot and boiling water, debris, and steam through said pipe, left exposed as aforesaid, onto the ground, and into a depression or hole thereon at the end of said pipe, and said child, then and there being, fell into said boiling water and the said debris, and the said Louisa Schmidt was thereby scalded and burned to death, and did, from the effects thereof, on the same day, die. Plaintiffs say that the death of their said child was caused by the wrongful acts, neglects, and defaults of defendant. By reason whereof plaintiffs are damaged in the sum of five thousand dollars, and an action hath accrued to them under and by virtue of the statute in such cases made and provided. Wherefore plaintiffs ask judgment for the sum of five thousand dollars, and for costs."

The evidence in the case tended to show that plaintiffs were husband and wife, and the lawful parents of Louisa Schmidt, the deceased; that said Louisa Schmidt, an infant and unmarried, three years and three days old, died on the second day of November, 1882, of the injuries received the same day, and some three hours earlier, on the defendant's premises; that the defendant was the owner and operator of a distillery east of and near the city of Kansas, on the south side of the Missouri river; that the distillery buildings were situated on the south side of a public road, 40 feet wide, which runs north-east, and nearly parallel to a slough, which was formerly a main channel of the river, but which has recently been to a great extent filled up; and that across the slough, and between it and the river proper, are situated the cattle-sheds of the defendant, which owns the property from the public road to the...

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