Plaintiff was employed by defendant to deliver bottled beer in boxes. One of the boxes was defective and gave way while plaintiff was lifting it, allowing some of the bottles to fall to the floor and break, and a piece of glass flew up and struck plaintiff in the eye. Held, that plaintiff did not assume the risk of injury arising from defendant's failure to furnish him a safe box.
5. TRIAL—INSTRUCTIONS—WEIGHT OF EVIDENCE.
An instruction, requested by defendant, that the fact that a slat in the bottom of the box gave way, in consequence whereof one or more bottles fell out, was not proof of negligence on defendant's part, nor did it authorize an inference of negligence, and the jury could not infer negligence from the fact that plaintiff was injured, was properly refused as on the weight of the evidence.
6. MASTER AND SERVANT—INJURIES TO SERVANT—INSTRUCTIONS.
An instruction, requested by defendant, that, before plaintiff could recover, the jury must first find that the weak and insecure condition of the box was the direct cause of the injury, was properly refused; such condition of the box being but one of the contributing causes of the injury.
7. TRIAL—INSTRUCTIONS—IGNORING EVIDENCE.
An instruction that, if the cause which led to the giving way of the slat in the bottom of the box was not visible, and that, if an inspection made before the box was used did not show the defect, plaintiff could not recover, was properly refused as ignoring evidence tending to show that the box was defective, that it was repaired, and that the repairing was negligently done.
Valliant, Fox, and Graves, JJ., dissenting in part.
In Banc. Appeal from St. Louis Circuit Court; Jno. A. Blevins, Judge.
Action by Norber Zeis against the St. Louis Brewing Association. From a judgment granting a new trial, defendant appeals. Affirmed.
The following is the statement and opinion of WOODSON, J., in division No. 1:
"This is a suit that was instituted in the circuit court of the city of St. Louis, by the respondent against the appellant, seeking to recover damages in the sum of $15,000 for an injury to his eye, caused by the alleged negligence of appellant, in furnishing him a weak and insecure box, in which he was required to haul and deliver beer, which gave way or broke on account of weakness, while the box was being loaded into the wagon, and allowed the bottles of beer to fall therefrom, upon a granitoid floor, which broke one or more of the bottles, and caused a piece of glass to fly up and strike him in the right eye, and seriously injuring it. The answer was a general denial.
"The evidence tended to show that the appellant was engaged in the manufacture, sale, and delivery of beer. That respondent was in the employment of appellant as a driver of a beer wagon at the time of the injury. That between the main building and the bottling works there was a driveway about 16 feet in width. That the bottling works had doors which opened upon the driveway, and the wagon was driven in there and loaded from those works. That the boxes were manufactured at a box factory and purchased by the brewery. They would hold 24 bottles of beer, and were used for delivering beer in. The sides were made of white pine lumber one-half inch thick, and the ends were of gum or cottonwood and seven-eighths of an inch in thickness. The partitions were also of gum, and the bottoms consisted of one, two, or three pieces, nailed with seven-penny nails. This style of boxes were in universal use in St. Louis at the time of the injury. That it was the duty of the driver to deliver beer in those boxes to the customers, and to call for them later and return them to the bottling works. That the driver in loading the wagon remained thereon, and received the boxes as they were handed or swung to him by the men on the floor below, and arranged them in the wagon to suit himself. That when the boxes were returned to the bottling works they were all examined by the box repairers to see that they were all in good condition; if not, they repaired them. That after this inspection they were turned over to the packers, who again inspected them, and, if found in good condition, they filled them with the bottles; if not, they put them aside or had them repaired before again using them. That after the boxes were filled they were arranged in tiers, one on top of the other, in the bottling works, ready for delivery. That at the time of the injury respondent was on the wagon, and two men on the floor handing him the boxes. That one of them took a box from the tier, carried it across the floor of the works, and was swinging it to the respondent, when one end of the bottom of the box gave way, and one or more of the bottles fell out of the box, onto the floor, and broke, and that a piece of the broken glass flew up and struck him in the eye, and seriously injured it. That upon the examination of the box, immediately after the accident, it was found that one end of one of the strips had come loose, that at this end the strip had been nailed by two nails, that the end piece of the box, to which the strip had been nailed, had had many nails driven into it before, `so that it was kind o' rotten lookin,' that this was due to its having had many nails driven into it before, that it had split the wood of the end piece and caused it `to bulge out,' that the nails had been driven in the old holes, and pulled out, and the end pieces were in such condition that upon an inspection the defect was noticeable from the outside. The evidence also tended to show that respondent's injuries were serious and permanent, that he had incurred a doctor bill of $1,035, and the loss of wages.
"There was no material conflict between the respondent and appellant as to the facts in the case, except as to the condition of the end of the box complained of. Appellant offered evidence tending to show that there were but two old nail holes in the end of the box, and that they were not visible from the exterior, and that the end board was perfectly sound, in so far as appearances were concerned. At the close of respondent's case, and at the close of the introduction of all the evidence in the case, appellant offered a demurrer to the evidence, both of which were by the court refused, and it duly excepted.
"The court then instructed the jury for the respondent, over the objections of appellant, as follows: `Instruction No. 1. The court instructs the jury that if they find from the evidence that plaintiff, on or about August 23, 1902, was in the employ of defendant as a driver of one of its beer wagons used by the defendant for the delivery of beer within the city of St. Louis, and as such driver was required to assist in loading onto the said wagon boxes and cases of bottled beer, and that on said date he was
engaged in the performance of his duties as such employé of defendant in assisting in the loading of boxes or cases of bottled beer on said wagon at defendant's place of business at or near Seventeenth and Market streets in St. Louis, and that while he was so engaged, and while one of said boxes or cases filled with bottles of beer was being handed to plaintiff by an employé of defendant who was aiding in loading said wagon, to be loaded on said wagon, and when plaintiff was about to take hold of same, a part of the bottom of said box or case containing said bottles of beer broke, or gave way, and some of said bottles of beer therein contained fell through and out of the bottom of said box or case and upon the floor or pavement, and broke or bursted, and that thereby a piece of glass from one of said broken or bursted bottles struck plaintiff in the right eye and injured him, and that said box or case was defective, in that the bottom thereof was weak and insecurely fastened, and by reason thereof said box or case was not reasonably safe for the purpose for which it was used, and that such defective and unsafe condition of said box or case was unknown to plaintiff, and could not have been known to him by the exercise of ordinary care on his part in the performance of his duties as such employé of defendant, but was known to the defendant, or might have been known by the exercise of reasonable care and diligence on the part of defendant or its agents or employés charged with the inspection and repair of same, then your verdict should be for the plaintiff. By reasonable or ordinary care, as used herein, is meant such care as a man of ordinary prudence would exercise under similar circumstances.' The court also...
