Yost v. Atlas Portland Cement Co.
| Decision Date | 08 June 1915 |
| Parties | GEORGE E. YOST, Respondent, v. ATLAS PORTLAND CEMENT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ralls Circuit Court.--Hon. William T. Ragland, Judge.
AFFIRMED.
Judgment affirmed.
Geo. A Mahan, Albert R. Smith and Dulany Mahan for appellant.
(1) Plaintiff was vice-principal of the defendant and was injured by his own carelessness and by servants who were his subordinates. He has no cause of action against the defendant, and defendant's demurrer should have been sustained. McGrory v. Railroad, 118 S.W. 710, 23 L.R.A. (N. S.) 301; Linemueller v. Arthur, 53 So 500, 127 La. 500; Langdon-Creasy Co. v. Rouse, 72 S.W. 1113; Evans v. Railroad, 62 Mo. 49; Minster v. Citizens' Ry. Co., 53 Mo.App. 280; Cole v Jones, 159 Mo.App. 473; Seaman v. Koehler, 122 N.Y. 646; Zumalt v. Railroad, 175 Mo. 311. (2) Defendant was not guilty of negligence. The plaintiff had full knowledge of the conditions. The evidence shows that the lid was properly constructed and the electric lights in proper condition except when they grew dim by burning, which plaintiff had a right to remedy. He assumed all the risk incident to his employment and cannot recover. Woelflen v. Lewiston & Clarkson Co., 95 P. 493, 49 Wash. 405; French v. Railroad, 24 Wash. 83, 63 P. 1108; Langdon-Creasy Co. v. Rouse, 72 S.W. 1113; Steeple v. Box Co., 33 Wash. 344, 74 P. 476; Bradley v. Forbes Tea & Coffee Co., 213 Mo. 320; Harper v. Green, 168 Mo. 312; Garaci v. Construction Co., 124 Mo.App. 709; Lee v. Railroad, 113 Mo.App. 388; Charlton v. Railroad, 200 Mo. 433; Smith v. Packing Co. 111 Mo.App. 13; Gummerson v. Kansas City Bolt & Nut Co. 171 S.W. 959; Braden v. Railroad, 161 S.W. 279. (3) Under any consideration of the case the record shows that plaintiff was guilty of negligence which contributed directly to his own injury. Smelser v. Railroad, 170 S.W. 1124; Sissel v. Railroad, 214 Mo. 529; Modlagl v. Iron & Foundry Co., 248 Mo. 587, 599; Miller v. Railroad, 175 Mo.App. 349, 351; Jones v. Morgan Bros. (Wash.), 88 P. 626; Bailey v. Stix, Baer & Fuller Dry Goods Co., 149 Mo.App. 656; Piepho v. Merchants Loan and Trust Co., 168 Ill.App. 511; Burnett v. Worcester Brewing Corporation, Mass., 106 N.E. 597; Seyford v. Southern P. Co., 159 App.Div. (N. Y.), 870. (4) The court committed error in giving plaintiff's instruction number 1. (a) Because when specific acts of negligence are charged in the petition it is essential that the instruction submitting the issue to the jury shall require a finding of the facts of the negligence so charged. May v. City of Hannibal, 172 S.W. 471; Chitty v. Railroad 148 Mo. 64; Beaver v. St. Louis Transit Co., 212 Mo. 331; Allen v. St. Louis Transit Co., 183 Mo. 411. (b) Because it is a well-settled doctrine that where specific acts of negligence are charged in a petition plaintiff can recover only upon proof of the specified negligence. Crone v. Oil Co., 176 Mo.App. 344; McGrath v. Transit Co., 197 Mo. 97; Israel v. United Railway Co., 172 Mo.App. 656; Roscoe v. Metropolitan Street Railway Co., 202 Mo. 576. (c) Because it is error to assume the negligence pleaded in the petition, for plaintiff having asserted the facts concerning the negligence laid must be held to prove them. May v. City of Hannibal, 172 S.W. 471; Orcutt v. Century Building Co., 201 Mo. 331; Miller v. United Railway, 155 Mo.App. 134.
J. L. Burns, W. A. Dudley and Jack Briscoe for respondent.
(1) Plaintiff was a forman having specific duties to perform. The system of lighting defendant's plant was provided by defendant and beyond plaintiff's control. A foreman executing specific limited powers is as much entitled to a safe place to work as any other servant. Combs v. Construction Co., 205 Mo. 367, top page 379; Morton v. Barr Dry Goods Co., 126 Mo.App. 377, l. c. 385, and cases there cited; English v. Shoe Co., 145 Mo.App. 439, 451. (2) Plaintiff was not injured by his own negligence, nor does a servant in any case assume the risk arising from the negligence of the master. Erwin v. Telephone Co., 173 Mo.App. 508, 535, and cases cited thereunder; Carleton v. Railroad, 200 Mo. 413, 433; Bible v. Railroad Co., 169 Mo.App. 519, 532; Curtis v. McNair, 173 Mo. 270; George v. Railroad Co. 225 Mo. 364, 407; Blanton v. Dold, 109 Mo. 64; Settle v. Railroad Co., 127 Mo. 336; Bradley v. Coal Co., 167 Mo.App. 177. Nor does the fact that the box-tender opened the trapdoor and left it open constitute any defense. They were put there to be opened under the circumstances of this case and even supposing that he was negligent in leaving it open, if the absence of proper light as the jury found, was the cause of the injury, the plaintiff should still recover. The negligence of a fellow servant must be the sole cause of the injury to constitute a defense. Deweese v. Mining Co., 54 Mo. 476; Johnson v. Bolt & Nut Co., 172 Mo.App. 214; Johnson v. Construction Co., 173 S.W. 1085; Irmer v. Brewing Co., 69 Mo.App. 17; Steffon v. Mayer, 96 Mo. 424; Thompson on Negligence, page 981. (3) The defendant was guilty of negligence in placing only eight or nine small electric lights to light up this vast platform, as long as a city block, with sixty-four manholes in it to be passed over from time to time by its servants. These manholes, or trapdoors, were put there to be opened from time to time. There had been previously sixteen or seventeen lights on the same space, eight of which had been removed. Irmer v. St. Louis Brewing Co., 69 Mo.App. 17; Mertz v. Lesdun & Sons Rope Co., 174 Mo.App. 109; Carney v. Brewing Assn., 150 Mo.App. 437, 444; Strobel v. Manufacturing Co., 148 Mo.App. 22, 33; Glazer v. Rothchild, 221 Mo. 180; Young v. Shickle H. & H. Co., 103 Mo. 324. That being the case, the questions of negligence and contributory negligence were for the jury to determine under the directions of the court. Reisert v. Williams, 51 Mo.App. 13; Holman v. Iron Co., 152 Mo. App., 672; Huhn v. Railroad Co., 92 Mo. 450; Powers v. Transit Co., 202 Mo. 267, 280, and cases cited thereunder; Carney v. Brewing Assn., 150 Mo. 437. (4) Appellant's point 4 is not well taken for several reasons: First, A plaintiff is not obliged to rely on all the specifications of negligence contained in his petition or proven by the evidence, and it was competent, usual and proper to ask an instruction on the specification of insufficient light and not on the others. Second, the instruction number 1, given for plaintiff does not assume that the trapdoor or opening in the tank was negligently left uncovered. It would seem from the testimony that under the circumstances it was proper to remove the cover; but, however that may be, the jury were not called upon to find anything regarding the tank except that it was uncovered at the time of the injury and that the defendant had negligently failed to cause the premises in the vicinity of said platform to be so lighted that the plaintiff would have discovered said opening in said platform in the ordinarily careful performance of his duties. Third, The instruction predicates our right to recover upon one of the specific grounds set up in the petition. No general allegation of negligence is relied on at all, but, defendant is entirely wrong in asserting that we were obliged to submit to the jury all the grounds specified in the petition. Fourth, The defendant is wrong again in stating that the instruction assumes that plaintiff was in the exercise of ordinary care. It assumes nothing of the kind. It requires the jury to find as a fact, precedent to a right to recover, that the defendant had negligently failed to cause the premises to be lighted so that plaintiff in the ordinarily careful performance of his duty would have seen the opening. This was sufficient. But the instruction goes further and requires the jury to find that he was without fault. The court also in instruction number 2, defined negligence and ordinary care, so that the jury could not have gone wrong.
--This is an action for injuries sustained by plaintiff while in defendant's employ and alleged to have been caused by defendant's negligence. There was a verdict and judgment below for plaintiff in the sum of $ 1000, and the case is here on defendant's appeal.
At the time of plaintiff's injury he was employed by the defendant corporation in the capacity of "shift foreman," in charge of a cement plant in Ralls county, Missouri. He was injured on the night of October 12, 1911, while in the discharge of his duties as foreman, by falling into an open manhole on the premises.
It appears that there were sixteen kilns on the first floor of this plant and above each kiln was a cylindrical coal bin about fifteen feet in diameter. The tops of these bins were level with and formed a part of a platform or floor, about twenty feet above the kiln floor, extending the length of the building, a distance of about three hundred and sixty feet. It appears that the coal was finely pulverized and was conveyed into each of these bins by means of a conveyor, and passed out through a funnel-shaped exit at the bottom thereof. A "conveyor box," about twenty-eight inches square, was situated above each bin. This platform was lighted by eight incandescent electric light bulbs, each of sixteen candle power; and ordinarily there was another such light at the head of the stairway leading up from the kiln floor. The coal bins were numbered from one to sixteen beginning at one end of the platform, and an electric light bulb was suspended above the conveyor box, over each alternate bin beginning with bin number 2. There was no such light over bin number 1, into which plaintiff fell, but the light at the head of the stairway was near this bin, and...
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