Kelley v. Jefferson Power Co.

Kruse, J.: I am not inclined to disagree with the presiding justice as to the correctness of the first request, relating to the negligence of the defendant, and what he says upon that subject. I think, however, that the second request charged was erroneous. Even if thé deceased had received the instructions not to fill the tank to within three feet of the top, and he in violation of these instructions filled it to within eight or ten inches of the top, and that was the cause or the contributing cause of the accident, I think the plaintiff might still be entitled to recover, because he may have done so unconsciously and without any negligence or want of care upon his part. ‘ The only way the person whose duty it was to pump the acid into the tank could tell absolutely how full it was, was by going to the top of the roof where the tank was located, and measure or examine the tank. The pump was in the building below. It was not expected that the workman would be constantly at the tank to watch and see how full it was. His duties required him to be elsewhere. It was necessarily a matter of judgment with him as to how full the tank would be from time to time, as he was pumping the acid into the tank. •Furthermore, there is nothing contained in the instructions which would necessarily suggest to him that the tank was weak and was in danger of giving way if it was filled to a point beyond three feet of the. top. Indeed, the evidence seems to indicate that the only purpose of giving the instructions was to keep the tank from overflowing, which it did occasionally. The charge, as requested by the defendant and as made by the judge, left out of consideration entirely the question of the" negligence of the deceased. [612] I think the order setting aside the verdict should be affirmed, with costs. All concurred, except McLennan, Pi J., and Lambert, J., who dissented in an opinion by McLennan, P. J.