Schumacher v. Kansas City Breweries Co.

Decision Date30 November 1912
Citation152 S.W. 13,247 Mo. 141
PartiesSCHUMACHER v. KANSAS CITY BREWERIES CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Peter Schumacher against the Kansas City Breweries Company. From an

order granting a new trial after verdict for plaintiff, he appeals. Affirmed.

The plaintiff instituted this suit in the circuit court of Jackson county against the defendant to recover $25,000 damages for personal injuries received February 14, 1908, through the alleged negligence of the defendant. The petition was in the usual form, and the answer consisted of a general denial and a plea of contributory negligence, assumptive of risk, and that whatever injuries the plaintiff sustained were the result of the negligence of a fellow servant. The reply was a general denial. A trial was had before the court and jury, which resulted in a verdict for the plaintiff for the sum of $12,500. In due time a motion for a new trial was filed, which was by the court sustained, for the reasons assigned of record, "that plaintiff was guilty of such contributory negligence that he ought not to recover; that the court erred in overruling defendant's demurrer at the close of plaintiff's case, and giving plaintiffs general instruction No. 1, and for the reason that plaintiff was guilty of such contributory negligence that he ought not to recover." From this order sustaining the motion for a new trial the plaintiff duly appealed the cause to this court.

The defendant introduced no evidence, and the plaintiff's evidence, outside of the physician's, consisted of his own testimony and that of four or five witnesses, employés of defendant. The facts of the case are but few, and are practically undisputed; but there is a wide variance between counsel as to the legal conclusions which should be drawn therefrom.

The appellant was an employé of respondent, and worked in what is known as the "cookhouse" or the "brewhouse" — that is, in the room where the kettles in which the beer is cooked are situated — and his duty was to look after the kettles, keep them clean, mix the materials which were cooked therein, and attend them while the cooking was going on, etc. The entire plant of appellant covered nine acres of ground, and consisted of many separate departments; among others were the bottling shop and racking room, where bottles and kegs were stored, washed, and filled with beer, the elevator building, where the grain was received and stored, the engine room, the refrigerating plant, the stockhouses and stock cellars, where the beer is stored, barns for horses and wagons, and office buildings, and many others according to the plat introduced in evidence. But those mentioned are the only ones which the evidence shows were under the charge and control of separate foremen, and who had the authority to employ and discharge all persons employed in their respective departments. The entire plant was under the general control of a general manager, and the respondent also had a general superintendent, Mr. Kridler, known as the "brew master," who had general supervision of all the departments of the plant, and, as before stated, the departments mentioned had a special or operating foreman.

Mr. Kridler, the general superintendent, was also the brew master, and had charge of the brewhouse, where the beer was manufactured and where appellant worked. There were employed in this department about 25 men, and about 150 in the entire plant. Mr. Kridler employed and discharged those working in the brewhouse, and had the authority, as I understand the record, to discharge men from practically all of the different departments.

One Martiny was the foreman, or, as he testified, the "wharf foreman," of the place where the grain was stored, but it seems that he was an all round kind of a man, and was at times assigned by Kridler to do various kinds of work, as the occasion might arise, in other departments. At the time of the injury complained of, Martiny had been assigned to the storeroom or cellar No. 1, which was on the second floor of the building, alongside of which respondent was injured, to tear out the partitions, floors, and joists, with the view of replacing the floor with concrete. Martiny was placed in charge of this work, and he went out and hired three or four men to assist him in doing that work; he acting as foreman. They began the work on February 3, 1908, and completed it on March 24th thereafter.

The appellant was injured in a passageway about 14 or 15 feet wide between said stockhouse on the west and the building in which were the engine and boiler rooms on the north and the brewhouse on the south; the latter building being on the east side of the passageway. Near the center of this passage there was located a railroad track, running north and south, but at that time it was but little used. This passage continued on south a considerable distance between the malthouse on the one side and the elevator building on the other. This passageway was in common and general use by the employés of respondent in going to and in returning from their work; there being a door opening from the brewhouse, where appellant worked, into this passageway. Whenever cars stood upon this track, which was about once a week, the employés did not use this passageway in going to and returning from their work. There were two or three other ways by which the employés could go to their work, but the one previously mentioned was the most direct and convenient route for those to go who lived north of the plant, one of whom was the appellant.

The appellant was injured by being struck with a heavy piece of timber about 16 feet in length, and 6 by 12 inches in thickness, thrown from a window in the second story of the stockhouse, some 16 or 17 feet above the ground. This window was on the west side of the passageway, and about 35 or 40 feet south of the north end thereof, the point where the appellant entered it. As before stated, the appellant was injured on the 14th day of February, 1908, 11 days after respondent began tearing out the partitions and floors previously mentioned. The first materials removed from the building were light stuffs taken from the partitions and floors. This stuff was taken to the window and thrown out without ceremony, if the passageway was clear; but when they began moving the heavy timbers, some time before the accident, the exact time not shown, a watchman was stationed at or near the north end of the passageway to warn the parties who were throwing the timbers from the window when the passageway was clear. Under that arrangement, whenever the parties in the building wished to throw or push...

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