Zimmerman v. Pryor

• Decision Date: 27 November 1916
• Docket Number: No. 12164.,12164.
• Citation: 190 S.W. 26
• Parties: ZIMMERMAN v. PRYOR et al.
• Court: Missouri Court of Appeals

190 S.W. 26

ZIMMERMAN v. PRYOR et al.

No. 12164.

Kansas City Court of Appeals. Missouri.

November 27, 1916.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Action by Dewey Zimmerman, a minor, by Alice Zimmerman, next friend, against E. B. Pryor and another, receivers of the Wabash Railway Company and the Wabash Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

J. L. Minnis, Gen. Counsel, and N. S. Brown, both of St. Louis, and Phillips & Phillips, of Moberly, for appellants. E. O. Doyle, of Moberly, for respondent.

JOHNSON, J.

This is a master and servant case. At the time of his injury plaintiff, the servant, was 17 years old, and had been employed 4 months as a common laborer by the defendant receivers at the yards of the Wabash Railway Company in Moberly. On a hot, windy day he was engaged in carrying away boards which were torn from the floor of a box car being repaired and were thrown out to one side. The car had carried cement, and the floor was covered with cement dust which was blown about from the boards when they were thrown out. The evidence of plaintiff tends to show that particles of cement dust were blown into his eye; that such dust is a caustic poison which is very injurious and dangerous to the eye; that owing to his youth and inexperience he did not know of this injurious property and its dangers; that defendant had or should have had such knowledge, as well as knowledge of his inexperience and ignorance; and that defendant negligently ordered him to work in that place without warning him of such special danger and hazard. There was a verdict and judgment for plaintiff, and defendant appealed.

The petition alleges:

"That defendants owed plaintiff the duty to furnish him a reasonably safe place to perform the labor required of him, and to exercise due care at all times to keep and maintain such place in a reasonably safe condition and further duty to warn plaintiff of any danger or risk connected with such place, or the labor to be performed that was not known or appreciated by plaintiff on account of his youth and inexperience, when such danger or risk was known to defendants or by the exercise of ordinary care could and should have been known; that notwithstanding the duties owing plaintiff by defendants, and plaintiff's youth and inexperience, obvious, defendants, by their boss or foreman, under whom plaintiff was working, ordered and directed plaintiff to carry away old floor boards which defendants, by their agents and servants, at the time, were taking up from a box car and throwing from the door to the side of the car, which car had recently been used by the defendants in transporting cement, large quantities of which had been left on the floor, covering the boards which were being torn up and which plaintiff was required to remove; that at the time the wind was blowing and the loose cement came from the door and from the boards and covered and surrounded plaintiff when he approached the car to get the planks, and that while plaintiff was so engaged and while in the act of picking up the planks or boards at the door of said car, large quantities of the said cement were blown or thrown into plaintiff's eye, which so poisoned and injured plaintiff's right eye as to form or produce an ulcer thereon which totally destroyed the sight thereof; that said cement was poisonous and destructive to plaintiff's eye, and plaintiff, by reason of his youth and inexperience, was unacquainted with the dangerous and injurious effect of the cement upon and to the eye and could not and did not appreciate the danger therefrom; and that the boss or foreman in charge of said work and with authority to order or direct plaintiff, failed and neglected to warn plaintiff of the danger to which he was exposed or to caution or instruct him in any manner to avoid the same. Plaintiff says that through the carelessness and negligence of defendants in failing to perform their duties as hereinabove set out, plaintiff has sustained lasting and permanent injuries in the loss of his right eye," etc.

The answer is a general denial and a...