Zellars v. Missouri Water & Light Co.

SMITH, P. J.

This is an action by plaintiff to recover damages for personal injuries occasioned by the negligence of the defendant. The defendant, a corporation organized under the laws of this State, was the owner and engaged in operating an electric and water plant at the city of Carrollton.' About five months previous to the thirteenth day of Eebruary, 1898, the plaintiff had been employed by defendant at its electric and water plant, by which employment it was made his duty to act as fireman and to repair and assist in repairing and keeping in order the boilers, pumps and other machinery in use at defendant’s said plant.

The petition contained two' counts, in the second of which, it was, amongst other things alleged, “that at all of said times the planks of said floor immediately over and covering said reservoir or water pit near said pump, were very old, and defendant negligently suffered same to become rotten and unsafe, so that they did not have sufficient strength to hold weight of plaintiff; which facts were known by defendant or could have been known and discovered by defendant had it exercised ordinary care to have discovered the same, but *114 were not known by plaintiff and could not have been discovered with exercise of due care and -caution by him, but that defendant with full knowledge of all the facts hereinbefore stated, negligently failed and refused to inform plaintiff of the existence of said reservoir or water pit full of boiling hot water and grease as aforesaid, and of the rotten and unsafe condition of said planks immediately over the same, and on the day last aforesaid negligently ordered the plaintiff to go upon said plank and floor and assist in repairing said last-named pump. That plaintiff, while acting under the orders of defendant and in the scope of plaintiff’s employment, entered upon said plank floor near said pump, immediately over and above said reservoir or water pit full of boiling water and grease as aforesaid, and while discharging said duties in repairing said pump and while in the exercise of due care and caution, the plaintiff’s left foot and leg broke through one of said planks near said last-named pump, and immediately over said reservoir of water, full of boiling water and grease as aforesaid, and went into said boiling water and grease up to plaintiff’s left knee, thereby scalding and burning said left foot and leg, from which'plaintiff suffered and is still suffering great bodily and mental pain,” etc.

There was a trial to a jury resulting in a general verdict for plaintiff for four thousand dollars and upon which, judgment was accordingly rendered. The defendant appealed.

I. The defendant by a motion in arrest assails the judgment on the ground that the said first count of plaintiff’s petition does not state a cause of action. ^ It is conceded that the said second count does. The cause of action was the injury complained. Sackewitz v. American Biscuit Mfg. Co., 78 Mo. App. 144 . It is not and can not be disputed that the cause of action stated in the second count, and that stated or attempted to be stated in the first, are identical — for the same injury. The rule is that where the same cause of action is stated in two or more counts and one of such counts is good, *115 the judgment must stand. Terry v. Railway, 89 Mo. 586 ; Clemens v. Collins, 14 Mo. 604 ; Brownell v. Railway, 47 Mo. 239 ; Brady v. Connelly, 52 Mo. 19 ; Lancaster v. Insurance Co., 92 Mo. 460 ; Burbridge v. Cable Co., 36 Mo. App. 669 ; Long Bros. v. Armsby Co., 43 Mo. App. 253 . It is of no importance whether the first count states a cause of action or not.

II. The defendant complains ,of the action of the court in refusing its instructions in the nature of a demurrer to the evidence. While the evidence adduced by the plaintiff, in many material respects, was at variance with that of the defendant, it tended to prove that the defendant’s power plant was located in a large two-story building which was divided by a partition wall into two rooms, one of which contained the boilers, pumps, etc., and the other the electrical machinery, etc. The boiler extended from the partition wall to within a few feet of the east wall of the room. About six feet south of the north wall of the building, and about ten feet east of the partition, was located a pump resting oñ a briclc foundation about one foot high; west of the pump was a brick wall about eight feet high, extending to the partition wall, thereby making a sort of a hallway between such brick wall and the north wall of the building, about six feet wide and six feet long, and through which persons necessarily passed in going from one room to the other. There was a plank floor in the hallway which extended therefrom into the east room about four feet to the east end of the foundation on which the pump rested. The remaining part of the floor of the east room was covered with cinders. Under the plank floor so extending into said room was a pit about four feet wide and six feet long and four feet deep, which was used to receive discharged steam and which usually contained very hot water. The planks composing the cover of the pit were black and dirty. Water escaped and came upon the floor and steam sometimes escaped through the cover of the pit. There was a pipe on th$ east ■side of the pit. through which water seeped.

*116 The plaintiff was not informed of the existence of the pit by any one. It appears further from the plaintiff’s evidence that Mr. White, the superintendent at the time he employed the plaintiff, advised him that his duties were to fire and do what the chief engineer told him to do. At the time of the plaintiff’s injury, Mr. Pilgrim was superintendent, Mr. Cunningham was chief engineer, and Mr. Parker was second engineer, and plaintiff and Gaines, the firemen. The two engineers were in charge of the plant and had authority to direct' the firemen.

The shift of the engineer Parker and fireman Gaines, the day the plaintiff was injured, ended at noon, and they were then succeeded by engineer Cunningham and plaintiff. Shortly before this shift, engineer Parker removed the boards from over the pit for the purpose of cleaning out the overflow pipe, when he observed one of the plank so removed was split, but the split had not gone to the extent of separating the plank into two pieces. The split extended diagonally across the east side of the .south end of the plank which adjoined the foundation on which the pump rested. Parker put the cover in its place leaving the pieces of this split plank still connected. Engineer Cunningham arrived to relieve Parker, while the latter was replacing the boards over the pit. While fireman Gaines was about to repair the broken board, engineer Cunningham directed him not to do so, saying that he would have the plaintiff make the repairs. Eireman Gaines testified that he had disconnected the plank, when directed by engineer Cunningham to go away and let the work alone.

It' does not appear whether engineer Cunningham replaced the piece of the plank or not, but it may perhaps be inferred that he did, as the plaintiff and another witness testified that they noticed no hole in the cover, such as the absence of the smaller piece of the plank would have made in it. It is not disputed that the plank was broken or split the day before the happening of the injury. It may be fairly inferred *117 from tbe facts disclosed that tbe plank in its split condition had been replaced just before the injury. Engineer Cunningham, with knowledge of the condition of the plank in the cover of the pit, directed the plaintiff to go upon the cover and assist in repairing the pump. The plaintiff had seen a small hole at the place where the split plank adjoined the pump foundation, but which was not large enough to admit his foot, He testified that he was not aware of the split condition of the plank nor of the existence of the pit under it. While the plaintiff was standing on the plank engaged in driving the plunger of the pump with a sledgehammer, his foot went through it into the pit of boiling water beneath, up to his knee; in consequence of which, he was scalded from his foot to his knee, and received severe and permanent injuries.

The law to the effect that it is the duty of an employer to furnish the employee at all times a reasonably safe place in which to do the work required of him, has been asserted and applied in a great variety of cases in this State, among which may be cited: Porter v. Railroad, 71 Mo. 66 ; Nichols v. Glass Co., 126 Mo. 55 ; Herdler v. Stove & Range Co., 136 Mo. 3 ; Helfenstein v. Medart, 136 Mo. 595 ; Bender v. Railway, 137 Mo. 240 ; Doyle v. Railroad, 140 Mo. 1 . This duty is not only enjoined by the law governing employer and employee, but it is also imposed upon the employer as owner of the premises by the general law for the protection of all persons lawfully thereon. Reichla v. Gruensfelder, 52 Mo. App. 43 ; Musick v. Packing Co., 58 Mo. App. 323 ; Dayharsh v. Railway, 103 Mo. 570 ; Siela v. Railway, 82 Mo. 430 ; Covey v. Railway, 86 Mo. 635 ; Dowling v. Allen, 74 Mo. 13 ; Gibson v. Railway, 46 Mo. 163 . This obligation which the general law imposes upon the owner of premises to guard persons lawfully there against pitfalls may be applied between employer and employee, and a failure to comply with it under the circumstances in a given case authorizes a legal inference of negligence on the part of the employer. Dowling v. Allen, ante; *118 Musick v. Packing Co., ante; Ryan v. Irolin, 24 N. Y. 410 . The duty of the employer, according to the cases already cited, is not only to furnish the employee a reasonably safe place in which to work, but, to see that such place is kept in that condition. If the former does not know of the unsafety of such place, and reasonable care would have disclosed it, then he is liable for injuries thereby occasioned to the latter, though not actually known to him.

"When one enters the service of another, he assumes all the ordinary risk's arising within the scope of that employment but he does not incur extraordinary risks. "Wood on Master and Ser., sec. 382; Refro v. Railroad, ante. He assumes only such risks in respect to the place as are obvious or known to him. Porter v. Railway, 71 Mo. 66 ; Herdler v. Stove & Range Co., ante. And an employee is entitled to all the information the employer possesses touching the dangers of the employment, not open and patent to his observation. Wood’s Law of Master and Ser., sec. 351; Sherman & Redfields’ Law Negl. (4 Ed.), sec. 203.

Viewing the evidence of the plaintiff in the light of the foregoing authorities, and we can not say that the plaintiff failed to establish a prima facie case entitling him to go to the jury. If the existence and location of the hot-water pit was not obvious or known to plaintiff, and was not discoverable by the exercise of ordinary care as the evidence of the plaintiff tended to show, the law did not imply from the contract of employment that he assumed the risk that might result from working over or about the pit. 2 Thompson on Negl., p. 919. While it doubtless was his duty to repair and keep the power plant in a safe condition, such duty did not require any precaution or care on his part in respect to the pit, the existence of which -was unknown to him. The plaintiff took the risk of the obvious and known dangers of the employment, but he did not take that of those hidden and unknown and against *119 which, it was the duty of the defendant to protect him, either by warning him of their existence or by removing them.

If the plaintiff did not know of the existence and character of the pit and could not have discovered the same by the exercise of ordinary care, no duty was cast upon him to repair the defect in its cover. If the two engineers and the fireman Gaines knew of the defect in one of the planks composing the cover, and had undertaken to repair the same, then their knowledge was that of the defendant. And the engineer Cunningham who directed the plaintiff to stand on the pit-cover and handle the sledgehammer while engaged in repairing the pump was a vice-principal, the defendant itself (Dowling v. Allen, ante; Sullivan v. Railway, 107 Mo. 66; Dayharsh v. Railway, 103 Mo. 570 ; Hall v. Water Co., 48 Mo. App. 356 ), for as has been previously stated the plaintiff was told at the time of his employment that it was one of his duties to do whatever he was ordered to do by the chief engineer. And though the defendant was apprised of the defective and dangerous condition of the pit-cover it was not disclosed to the plaintiff. If it was negligence or recklessness, without warning him of the existence of the hot-water pit or the defective condition of its cover, to order the plaintiff to do the work, in the prosecution of which he received the injury, it was the direct consequence of the order given by Cunningham who represented the defendant as vice-principal.

The law is that when one person employs another to perform a duty which he would have to discharge if such other were not employed to do it' for him, such other as to that service stands in the employer’s stead with relation to other persons and thus acts in the dual capacity of representative of the employer and as fellow-employee. Moore v. Railway, 85 Mo. 588 ; Hoke v. Railway, 88 Mo. 360 ; Huth v. Dohle, 76 Mo. App. 671 . It is clear that if the plaintiff’s evidence li-to be given credence, the defendant knew that the pit-cover was defective and unsafe, and while in that condition it *120 ordered the plaintiff to take bis place upon it and there perform certain work on the pump, without giving him any notice of its defective and unsafe condition, which was entirely unknown to him. How can it be said, in the face of the evidence tending to prove these facts, that the defendant did not neglect its duty to plaintiff in failing to provide him a reasonably safe place in which to work and in withholding from him its knowledge of the defective and unsafe condition of the pit-cover on which it ordered him to stand while doing the work required of him?

While as has been already intimated, the evidence was conflicting, still we think the ease is one for the jury, since it is the well-settled rule of practice in this jurisdiction that when the facts are disputed and are such that different conclusions may be drawn therefrom, or, where they admit of different circumstances and inferences, the ease is one for the determination of the jury and not for the court. Bender v. Railway, 137 Mo. 240 ; Coontz v. Railway, 121 Mo. 652 ; O’Mellia v. Railway, 115 Mo. 205 ; Roddy v. Railway, 104 Mo. 235 ; Nagel v. Railway, 75 Mo. 665 . And when there is some evidence, although slight, to support the verdict, and notwithstanding the weight of the whole evidence is against the verdict, yet the reviewing court is not authorized to interfere, for it is for the trial court to say whether the verdict is the result of passion or prejudice. Coontz v. Railway, ante; Huth v. Dohle, ante. These reflections bring us to the inevitable conclusion that the trial court did not err in its action allowing the case to go to the jury.

HI. The defendant further complains of the action of the court in giving the plaintiff’s second instruction which declared to the jury that if it found “that the defendant maintained a reservoir or water-pit in its said plant covered with a plank platform or walk, and that the said reservoir or pit was so maintained full of hot and greasy water, and that the plaintiff did not know of said reservoir or pit containing said *121 hot-and greasy water and could not have discovered it by the exercise of ordinary care, and that defendant, by and through its agent in charge of said plant, and controlling the operation thereof, directed the plaintiff to make repairs to the pump at a point w'hich required plaintiff to go upon said plank platform or walls: over said reservoir or pit, and that while so engaged in repairing, said pump, without fault or negligence on his part, the plaintiff’s left foot and leg broke through one of said planks over said reservoir or pit of water as aforesaid, and went into said hot water thereby scalding and burning plaintiff’s left foot and leg, then you should find for the plaintiff.” The second count of the petition alleged that the planks in the covering of the pit were very old and which defendant had negligently suffered to become rotted and unsafe so that they did not have sufficient strength to hold the weight of plaintiff, which facts were known to the defendant or could have been discovered by the exercise of ordinary care, but were unknown to plaintiff and could not have been discovered by the exercise or ordinary care;' that defendant failed to inform plaintiff of the existence of the pit and of the rotten and unsafe condition of the planks in the cover and negligently ordered plaintiff to go upon said cover and assist in repairing said pump; and that while in performance of the work so ordered, without any fault on his part, his left foot broke through one of the planks of the said cover and went into the boiling water of the pit below, eta

It is thus seen that the hypothesis of this instruction is by far too narrow in its scope in that it utterly ignores certain controverted facts constitutive of his cause of action, and without the finding of which there could be no recovery. Unless the defendant knew, or could by the exercise of ordinary care have discovered that the planks in the pit-cover were defective, if they were defective, and with such knowledge ordered the plaintiff to take his stand upon the cover to do certain work without warning him of'the defect and the incidental danger, *122 there was no liability for the injury. Surely upon no principle of law was the plaintiff entitled to recover if, as his instruction declared, the defendant did no more than order the plaintiff to stand on the pit-cover and there perform certain work and that while doing so his left foot broke through a plank in such cover, and in consequence of which he was injured. The very pith of the plaintiff’s case was that the defendant knew, or could have known by the exercise of ordinary care, that the planks on the pit-cover were defective and unsafe, and that with this knowledge he ordered the plaintiff to go- upon the pit-cover, in consequence of which he was. injured. This was a fact in issue which should have been submitted to the jury by the plaintiff’s instruction.

It is not true, as is contended by the plaintiff, that by the allegations of the defendant’s answer this fact stood admitted.

The answer alleges that the day before the accident a fellow-servant of the plaintiff let a heavy pipe fall on the cover-of the pit thereby causing a diagonal split therein, and that" a piece of the split plank was removed, leaving a hole in the cover which the plaintiff knew, etc. It needs no argument to show that such an answer did not supply the defect in the plaintiff’s instruction. If the plaintiff sustained the relation of fellow-servant to the engineers, or if the engineers did not act in the capacity of vice-principals in the discharge of the duties of their employment, then their knowledge of the condition of the plank on the cover was not that of the defendant. Musick v. Packing Co., ante; Sullivan v. Railroad, 97 Mo. 113 ; Condon v. Railway, 78 Mo. 567 ; Hall v. Railway, 74 Mo. 298 . It is thus seen that the admission of the answer was. not that the defendant knew, or by the exercise of ordinary care could have known, that the planks on the- cover of the-pit were defective, and that with' such knowledge ordered the plaintiff to go upon such cover in the performance of the-work required of him. Nor do we discover anything in the defendant’s instructions approving the theory of that of plain *123 tiff. For these reasons we must condemn plaintiff’s instruction.

The court might with .propriety have sustained the motion filed by defendant at the conclusion of all the evidence requiring the plaintiff to elect upon which count of his petition he would go to the jury, but as we are unable to perceive that the action of the court in denying the motion resulted in any prejudice to the defendant, it can afford no ground for interference with the judgment.

If the plaintiff was entitled to recover, we can not, in view of the evidence relating to the nature and extent of the injury received, say that such recovery was excessive.

On account of the error in giving the plaintiff’s second instruction, the judgment will be reversed and the cause remanded.

All concur.