Vaccaro v. City of St. Louis

• Decision Date: 03 January 1939
• Docket Number: No. 24710.,24710.
• Citation: 123 S.W.2d 230
• Parties: VACCARO v. CITY OF ST. LOUIS.
• Court: Missouri Court of Appeals

123 S.W.2d 230

VACCARO v. CITY OF ST. LOUIS.

No. 24710.

St. Louis Court of Appeals. Missouri.

January 3, 1939.

Rehearing Denied January 17, 1939.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be published in State Reports."

Suit by Dominick Vaccaro against the City of St. Louis for injuries alleged to have been sustained by plaintiff while employed by defendant as a laborer in defendant's sewer department. From a verdict and judgment for the plaintiff, the defendant appeals.

Affirmed.

Edgar H. Wayman, City Counselor, and David A. McMullan and Francis Finley, Associate City Counselors, all of St. Louis, for appellant.

E. H. Schwarzenbach and L. L. Bornschein, both of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, plaintiff below, against appellant, defendant below, to recover damages for personal injuries alleged to have been sustained by plaintiff while employed by defendant as a laborer in defendant's sewer department. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $965. After an unavailing motion for a new trial, defendant has brought the case to this court by appeal.

Plaintiff's amended petition, on which the case was tried, alleged that he was employed as a laborer in defendant's sewer department; and that it was his duty to perform all work ordered by defendant's foreman and superintendent under whom he was placed; that, on August 17, 1934, while so employed, plaintiff was ordered by a foreman to clean and remove, with his hands, debris beneath the water level at a trap in the mouth of the River des Peres relief sewer in the City of St. Louis, Missouri; that, while so doing and while exercising due care for his own safety, the fingers of his right hand were severely bruised, cut, and infected, and permanently injured; that said injuries were the direct and proximate result of the negligence of defendant, its agent and servant, in the following respects:

That defendant, by its servant, negligently ordered plaintiff to use his hands in removing debris from the trap, when it knew, or by the exercise of ordinary care would have known, that plaintiff, in removing said debris, was likely to cut his hands and receive an infection therefrom;

That defendant, through its servant, negligently ordered plaintiff to remove the debris with his bare hands, when it knew, or would have known by the exercise of ordinary care, that the water in said sewer was polluted, and that plaintiff would be likely to receive an infection therefrom;

That defendant negligently failed to provide plaintiff with rubber gloves, or some other protection for his hands before ordering him to remove debris from the trap;

That defendant negligently failed to provide plaintiff with safe, proper, and adequate appliances and tools with which to work, and negligently failed to provide plaintiff with such tools with which he could remove debris without using his bare hands, or putting them in the polluted water;

That defendant knew, or by the exercise of ordinary care would have known, that the work which plaintiff was ordered to do was dangerous, and that defendant could have made said place a reasonably safe place to work, but negligently failed to do so.

After describing the injuries and alleging their permanency, plaintiff's petition concluded with a prayer for damages in the sum of $5000.

The answer of defendant admitted that it is a municipal corporation, and generally denied each and every other allegation of plaintiff's petition. For a further answer, defendant pleaded a release alleged to have been executed by plaintiff, releasing defendant from all claims and demands on account of the injuries described by plaintiff, a copy of the release being attached to and made a part of defendant's answer.

For reply, plaintiff denied the allegations of the answer; specifically denied that he had executed or delivered the release; and alleged that the release was obtained by fraud.

Defendant filed a general denial to plaintiff's reply.

It appears from the evidence that plaintiff began working for defendant in its sewer department in August, 1933. For about the first six weeks his work was that of digging ditches along the bank of the River des Peres. After that period, he was transferred to the river patrol, where it was his duty to assist in keepng the sewers free of debris. The sewer in which plaintiff worked at the time of his injury was about fifteen or twenty feet in diameter, and was built for the purpose of carrying away excess surface water as well as sewage water which was emptied into a smaller sewer below the large sewer, described in the testimony as the foul water sewer, by means of a trap or interceptor. The interceptor or trap was built in the floor of the large sewer and was made of one half inch iron bars, about three inches apart, over the opening which was about three or four feet wide and about seven feet long. The trap or interceptor prevented the debris, when washed down the large sewer by rains, from clogging the smaller sewer. The evidence shows that, after heavy rains, the trap or interceptor would become covered or clogged by debris, which would prevent the foul water from emptying into the foul water sewer. It was necessary that such debris be removed from the trap or interceptor. Plaintiff testified that, while engaged in the work of removing such debris, he sustained his injuries.

The evidence shows that plaintiff had been furnished by defendant with a shovel and an iron hook with a long handle to do the work of removing debris. He had not been furnished by defendant with gloves and did not wear any gloves. It appears that plaintiff had been doing this kind of work for about a year prior to the time he was injured. The evidence further shows that, on August 16, 1934, the day before plaintiff was injured, there had been a heavy rain; and that, on August 17, 1934, plaintiff was engaged in cleaning a trap or interceptor with a fellow employee, Frank Feist; that they found weeds, tin cans, automobile tires, and sharp wires, and such rubbish on top of the trap where they were working; that the water was going over the top of the trap and was about eight inches deep; that plaintiff started to pull the debris with a hook, but was unable to do so because there was rubbish caught in the bars of the trap; that he put the hook aside and started to pull the rubbish with his hands, when he felt something sharp stick his hand, causing it to bleed. He paid no attention to it at the time, but went right on working. He worked two days thereafter, and then received medical attention. He talked to Mr. Dougherty, the foreman, about his injury the day after he received it when his hand began to swell.

Dr. Francis J. Medler testified on behalf of plaintiff that he examined plaintiff's hand on August 20, 1934, and found a laceration of the middle finger of the right hand over the side, the middle joint of the finger; that the finger was badly inflamed, and he diagnosed it as an infection along with an injury and possible bone infection; that his diagnosis turned out to be correct; that osteomyelitis was present; that the injury to the finger was permanent; and that there was a wasting away of the muscles of the palm of the hand, which is permanent.

Defendant contends that the court erred in overruling its instruction in the nature of a demurrer to the evidence at the close of plaintiff's case and again at the close of the whole case. In support of this contention, defendant argues that there was no evidence to show that the order alleged to have been given to plaintiff by defendant's foreman Dougherty was negligent; that the order did not subject plaintiff to an unnecessarily hazardous risk in the light of the task to be performed at the time the alleged order was given; that the risk of injury was one ordinarily incidental to the employment plaintiff was engaged in; and that plaintiff assumed such risk; that there was no showing of unfamiliarity of plaintiff with the risk, or that the foreman had superior knowledge; and that the alleged negligent order was not the proximate cause of the injury.

There is no issue of contributory negligence before this court, nor is there any issue concerning the release. It is stated by both parties that the "case concerns itself entirely with issues as to whether orders on the part of Dougherty to respondent (plaintiff) to use his hands in doing the work were negligent."

Plaintiff testified that, when he started the job, Mr. Dougherty, the foreman, gave him tools and told him to go ahead and work and clean the debris away from the trap the best way he knew how; that Dougherty told him to clean the debris with the hook, and, if he could not get it with the...