Ward v. Poplar Bluff Ice & Fuel Co.

• Decision Date: 02 July 1924
• Docket Number: No. 3546.,3546.
• Parties: WARD v. POPLAR BLUFF ICE & FUEL CO.
• Court: Missouri Court of Appeals

264 S.W. 80

WARD v. POPLAR BLUFF ICE & FUEL CO.

No. 3546.

Springfield Court of Appeals. Missouri.

July 2, 1924.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Robert W. Ward against the Poplar Bluff Ice & Fuel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sheppard & Sheppard, of Poplar Bluff, for appellant.

Cope & Tedrick and Lawrence Tedrick, all of Poplar Bluff, for respondent.

COX, P. J.

Action for damages for personal injury. Judgment for plaintiff, and defendant appealed.

Plaintiff was in the employ of defendant and engaged in assisting in the manufacture of ice. There was a large water tank maintained by defendant for storing water. The top of this water tank was about 7% feet above the floor. It was necessary at times for some one to climb up and look over the top of the tank to see how much water was in it. There was no means furnished by defendant by which a person could climb up and look over the top of the water tank. There was an ammonia tank located mainly beneath the floor, but at the side of the water tank it protruded above the floor about 2% feet. This ammonia tank was about 2% feet in diameter and had an oval top. The only way by which a person could get up high enough to look over the top of the water tank was to get up on top the ammonia tank and stand on it while looking into the water tank. Plaintiff was directed by his foreman to climb up and inspect the water tank to see how much water it contained. This he did by climbing up and standing on top the ammonia tank. While there, the foreman asked him some question about the water, and he at that time was standing on the ammonia tank and steadying himself with one hand on a rail on which a roller that supports a crane moves backward and forward, as needed. While in that position, the roller just mentioned approached on the rail from the rear and ran over plaintiff's hand and injured it. The crane was operated by a fellow servant of plaintiff.

The charge of negligence was that there were no steps or ladder or other adequate means whereby he could perform his duty aforesaid, referring to his duty to get up where he could see over the top of the water tank, and by reason of defendant's failure to provide reasonably safe and adequate means to inspect the water supply aforesaid, plaintiff was compelled to climb up and stand upon the said ammonia tank, and in order to maintain his balance thereon, he was forced to hold to any support within his reach.

Appellant contends that, since the injury to plaintiff's hand was caused by a fellow servant moving the crane and causing the roller to pass over the hand of plaintiff, plaintiff could not recover. If that were the sole cause of the injury, the appellant's position would be sound. We are not prepared to say, however, as a matter of law, that the act of the fellow servant was the sole cause of the injury. If defendant was negligent and its negligence concurred with that of another to cause the injury, it is liable. Harrison v. Kansas City Electric Light Co., 195 Mo. 606, 622, 93 S. W. 951, 7 L. R. A. (N. S.) 293; Hunt v. St. Louis, 278 Mo. 213, 227, 211. S. W. 673.

For the plaintiff, the court gave the following instruction:

"The court instructs the jury that if you believe and find from the evidence that the plaintiff herein, was, on the 9th day of April, 1923, in the employ of the defendant and that, on said date and while...