Van Verth v. Loosewiles Cracker & Candy Co.
| Decision Date | 03 April 1911 |
| Citation | 136 S.W. 724,155 Mo.App. 299 |
| Parties | HARVEY VAN VERTH, Respondent, v. LOOSEWILES CRACKER & CANDY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Herman Brumback, Judge.
Affirmed.
Warner Dean, McLeod & Timmonds and H. M. Langworthy for appellant.
Guthrie Gamble & Street and James M. Rader for respondent.
This is an action by plaintiff to recover damages sustained by him while in the employment of the defendant. He recovered a verdict and final judgment for four thousand dollars, and the defendant has appealed to this court.
The defendant was engaged in manufacturing candies at Kansas City, Missouri. The plaintiff was about seventeen years of age at the time of his injury, which occurred about four o'clock in the afternoon of the 16th of October, 1906. He had been engaged in the same kind of work on the third floor of defendant's plant about three months and had become familiar with the manner in which it was done. Part of his work consisted in aiding another employee to carry kettles of melted sugar, used in making candy, from the boiling kettle and pouring it into another machine called a "depositor," used in moulding the candy into shapes. He was so engaged when he received his injury.
The kettles used for carrying the melted sugar from the boiling kettle to the depositor had a stiff and stationary handle on each of its two sides. Plaintiff would take hold of the handle on one side, another employee hold of the handle of the opposite side, and in this manner they would carry it from the boiling kettle to the depositor. In going from the boiling kettle to the depositor, a distance of fifteen or twenty feet, they passed along an aisle, one of the two walking backward and the other forward until they reached the place to deposit. Generally plaintiff did the walking backward.
In making the trip during which plaintiff received his injury, he struck his right foot against a "cream tub" used in the business, fell backward, and the pot of melted sugar spilled over his abdomen and legs, burning him.
There were several allegations in defendant's petition charging negligence, but it was tried on the one alleging that defendant failed to keep the place in which plaintiff was required to do the work reasonably safe.
The cream tub against which plaintiff struck his feet and which caused him to fall, was box-shaped and stood upon castors so it could be rolled about from place to place. It was about eighteen inches high, two feet wide and four feet long. The passage way mentioned was about seven feet wide. The cream tub was usually left close to one side of this passageway, when not in use. The plaintiff testified that at the time of his injury this cream tub was about in its usual position, except one of its corners protruded into the passageway. Immediately before the injury plaintiff had passed up and down the aisle several times, and he testified that the cream tub was not out of its usual position the last time he passed, and he did not know how it got where it was. There is no testimony going to show by whom or how it became displaced. It must have been placed thereby some of defendant's employees, as it was not shown that any strangers were around.
The third floor where plaintiff was injured contained six departments or branches of the business, viz: The crystalizing, the French cream, the chocolate, the caramel, the packing, and the cold storage department, each with a separate foremen, and doing separate work. The plaintiff was in the French cream department, and the foreman in charge at the time was Orville Dome. The floor of this story was about 75 feet wide by 150 feet long. In the department in which plaintiff was engaged there were six men. There was what is called a candy slab on one side of said passageway, at which the cream tub rested when not being used. This candy slab was a part of the dividing line between the French cream department and the chocolate department. There were six men employed also in the latter department.
It was shown that Dome was the person who drew the contents from the boiling kettle and deposited it in the dumping kettle and Earl Marksbury was the person who helped carry the dumping kettle.
Plaintiff testified that just before his injury some of the members of the chocolate department were working on said slab, but he did not know whether any one was so working on it at the time of his injury. Plaintiff stated that after having carried the last kettle of melted sugar, previous to the one he was carrying when he fell, in returning to the boiling kettle he did not go through said passageway but after getting a drink of water he passed along by way of the north wall of the room and then east; that Marksbury, however, returned through the passageway; and that Dome from the position he occupied at the boiling kettle, had an unobstructed view of said passageway to the depositor.
During the cross-examination of plaintiff he was asked that, if in his deposition that had been taken in the case he had not made certain material statements. Objection was made to the competency of the question on the ground that as the deposition was on file the proper way was to read to the witness the deposition and then question him. Defendant's counsel explained that the object was not for the purpose of impeachment, but for the purpose of testing his recollection. The court sustained the objection.
Neither Marksbury, Dome, nor any other person who could have known who changed the position of the cream tub was introduced as a witness. The defendant introduced no evidence and asked the court to direct a verdict in its favor at the close of plaintiff's testimony, which the court refuse to do.
We think it was sufficiently shown that plaintiff's injury was caused by being tripped by the cream tub, that had been moved by some one from its usual position near the candy slab, so as to protrude into the passageway used by plaintiff and his helper, Marksbury.
The plaintiff's injuries were of a very distressing nature and to some extent permanent, and his suffering was great.
The position of plaintiff is that: "Defendant's duty to keep the place where plaintiff was working safe was non-delegable and continuing, and that it is responsible to plaintiff, regardless of who produced the unsafe condition, or the length of time it had existed, since it must have been produced by some employee."
We cannot admit the position of respondent as a just definition of the duty the master owes to his servant. It is true that it is the duty of the master to furnish his servant a reasonably safe place in which to do his work and that duty is a continuous one, but we are not prepared to admit in the broad terms with which it is expressed that the master is liable for its unqualified safety regardless of who produced it. The master is only required to exercise reasonable care to furnish and keep the servant's place for doing his work reasonably safe; and it can make no difference by whose agency, other than that of the servant himself, its condition has...
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