Wright v. Berry Iron & Steele Co.
| Decision Date | 30 April 1923 |
| Citation | 250 S.W. 942,213 Mo.App. 599 |
| Parties | FRED WRIGHT, Respondent, v. BERRY IRON & STEELE CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Buchanan County.--Hon. L. A Vories, Judge.
AFFIRMED.
Judgment affirmed.
Joseph M. Garvey and William E. Stringfellow for respondent.
Waldo P. Goff and Ryan & Zwick for appellant.
--This is a suit for damages for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant.
Defendant is a corporation engaged in a general foundry and manufacturing business in the city of St. Joseph, Mo Plaintiff had been employed by defendant as an iron molder for a period of five years preceding the injury. The manner of performing the work in said foundry, as disclosed by the record, is as follows: The iron ore is melted in a cupola and when in a molten condition is poured into a receptacle in which it is moved by a power crane to the vicinity of molds of various forms, where it is transferred to portable steel ladles lined with fire brick and fire clay. These ladles, together with the molten metal therein, weigh ordinarily from 2400 to 2500 pounds, the ladle itself weighing from 300 to 500 pounds. The ladle thus filled is then suspended upon an endless chain swinging from an overhead rail and by means of pulleys can be raised or lowered by hand at will. Three men are required in the process of moving the ladle to the place desired and to fill the molds or forms therefrom. One of the men so employed operates the chain and the other two propel the suspended ladle by means of "U" shaped handles operated from opposite sides thereof, and the metal is poured from the ladle into the molds.
On June 2, 1921, plaintiff with two other workmen, named Jarrett and Rhodes, were moving a ladle so filled with molten metal, alongside a row of molds. The ladle was suspended about a foot and a half above the earthen floor of the foundry, and while so propelling the ladle, and after three of the molds had been filled, a leak developed in the bottom of the ladle and a stream of the molten metal approximately an inch and a half in diameter began to flow therefrom upon the ground. There was testimony tending to show that the customary way in which experienced foundry men handled such a situation was to propel the leaking ladle to a position immediately above a sand pile lower the ladle thereon and allow the metal to run out in the sand. On the occasion in question the ladle was above the dirt floor of the foundry at the time the leak developed, and the said floor immediately thereunder was of a slightly inclining surface.
One of the three workmen handling the ladle testified that when the leak was discovered, they started to push the ladle southward for the purpose of setting it down in some dry sand which had previously been dumped upon the ground from some of the molds (but the testimony of the other witnesses on this point is to the contrary;) and that before reaching said point, by order of the superintendent they immediately set the ladle down on the hard dirt floor. The testimony further tends to show that the superintendent's order was to "set the ladle down and get some water on it," or, "set it down and put water on it," or, "set the ladle down and throw some water on it."
The testimony shows that when the ladle was set upon the ground, the surface of which was on a slight decline toward a row of molds, the molten metal that had escaped therefrom ran down to and ignited the wooden, or board bottoms of some of said molds above referred to; and that in compliance with the superintendent's order, the three men handling the ladle went away to get water. One of them, Rhodes by name, returned in two or three minutes, and threw about three gallons of water on the outside of the ladle and on the ground surrounding it, and then started to obtain more water. The second man, Jarrett, also came with a three-gallon bucket of water and threw one gallon "at the ladle," but he states he does not know exactly where it lit, but that it fell somewhere on the ladle. He then noticed that the metal which had spread out upon the ground around the bottom of the ladle was agitating, and believing an explosion likely to occur, he ran away.
The plaintiff, having secured a bucket of water, returned to the scene, observed the burning of the boards at the bottom of the molds while walking towards them with the purpose of throwing water on them, and when he was about ten feet from the leaking ladle, an explosion occurred whereby quantities of the molten metal were thrown upon him and he was thereby seriously burned.
The amended petition charges negligence, first, in that defendant "negligently failed to furnish plaintiff and the other workmen so engaged with a safe ladle for their use, but furnished them with a defective and unsafe ladle, and thereinafter conducted the work in which they were engaged in a negligent and dangerous manner, as hereinafter described; that while engaged in moving said defective ladle the metal contained in said ladle, because of its said defective condition, began to flow therefrom upon the ground, which constituted the floor of said foundry; that thereupon the defendant, acting through its foreman, agent and vice-principal, carelessly and negligently ordered this plaintiff and other workmen to set said ladle down and throw water on it; . . . that because of said order and said compliance or attempted compliance therewith, said metal was caused to and did explode; that defendant knew, or by the exercise of ordinary care would have known, that under such conditions to set said ladle down and throw water on it would be liable to cause an explosion and injure said workmen;" etc.
Permanent injury of plaintiff is pleaded, and damages prayed in the sum of $ 30,000.
The amended answer admits the corporate existence of defendant and that plaintiff was in its employ as alleged, and denies each and every other allegation of the petition. Further the amended answer pleads assumption of risk of injury by plaintiff for which defendant is not liable.
The reply was a general denial. At the close of all the evidence, an instruction in the nature of a demurrer was overruled by the court and the case submitted to the jury, resulting in a verdict and judgment for plaintiff in the sum of $ 6000. After an unsuccessful motion for a new trial, defendant appeals.
The first point urged by defendant in support of this appeal is that the court erred in refusing to give defendant's offered instruction in the nature of a demurrer, at the close of all the evidence. It is contended, in support of this assignment, that the gravaman of the action, as stated in the petition, is that defendant was negligent in its failure to make reasonable inspection and repair of the ladle so as to prevent its leaking. Opposed to this position, it is plaintiff's contention that the gravaman of the action is the negligent order of defendant's superintendent, and not the failure to make reasonable inspection and repair of the ladle.
The language of the petition fails to sustain the position of defendant on this point, for it expressly charges that defendant "negligently failed to furnish plaintiff and other workmen so engaged with a safe ladle for their use . . . and thereafter conducted the work . . . in a negligent and dangerous manner, as hereinafter described . . . and negligently ordered this plaintiff and other workmen to set said ladle down and throw water on it . . . that because of said order and said compliance, or attempted compliance therewith, said metal was caused to and did explode," etc.
The petition therefore charges negligence in furnishing a defective ladle for plaintiff's use, and by reason thereof, the metal was spilled upon the ground, and by reason of the negligent order to set the leaking ladle down and throw water on it, the explosion occurred and the damage was done. While there was some testimony introduced in an effort to show failure to inspect the ladle properly, the record shows the case was tried chiefly on the alleged negligent order of the foreman.
On the question of the alleged defect in the ladle, one of plaintiff's witnesses, Jarrett, who was one of the three men handling the ladle at the time of the injury, testified as follows:
(Part of the petition was read by Mr. Stringfellow.)
Defendant saved its exceptions.
There was testimony tending to show that the particular ladle in which the hot metal exploded had been used two or three times that day before the explosion occurred, and that it was not relined on that particular day. In the face of this record we are...
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