Cameron v. B. Roth Tool Co.

REYBURN, J. (after stating the facts,). — 1. If the position of appellant has been understood, a departure or variance in the evidence from the allegations of the petition is assigned, upon the reasoning that the negligence relied on in the complaint charged that the tube containing explosive and dangerous material was placed in a heating furnace, while the evidence received tended to show that the furnace contained fire at red heat and the ingredients in the tube were not in themselves explosive, but the explosion was‘consequent on the absence of vents or openings in the tube for the escape of the gases generated, while the tube was in an overheated furnace. This interpretation of the testimony and of the petition are narrow, forced and untenable; the defendant by its answer attributed contributory negligence to plaintiff in improperly heating the furnace and placing therein the metal tube and tended further in the same direction by the examination of its witnesses as to the cause of the disaster. The course pointed out by the statute was not invoked and it can not be perceived that defendant was misled to its prejudice or that the variance, if any,which may be questioned was substantial or material. R. S. 1899, sec. 655; Oglesby v. Railroad, 150 Mo. 137, 37 S. W. 289, 51 S. W. 758; Farmers’ Bank v. Ins. Co., 80 S. W. 299. It follows also that the objection to the response of plaintiff’s expert witness to the hypothetical question addressed to him as not within the scope of the pleadings, was properly overruled. [270] 2. Defendant has urged that the trial court erred, in ruling upon the admission and exclusion of testimony, particularly in refusing to permit its witnesses to make reply to the question how frequently the tube and material had been employed by him, but as it was disclosed, that neither prior nor subsequent to the catastrophe, were the premises of defendant made the scene of other such experiments, and the question related to occurrences probably subsequent to and certainly not connected with the accident involved, such testimony was irrelevant and properly excluded. Nor is error perceived in allowing the same witness, Howe, to testify that he had given no previous warning to plaintiff or other employees of the perils of the work in which he was then engaging, as their knowledge or ignorance of such danger was material and important. 3. The court gave the following instruction at plaintiff’s instance: ‘ ‘ The court instructs the jury that if they find and believe from the evidence that on or about April 7, 1903, the defendant company permitted and invited one Howe to enter upon its premises where the plaintiff was working as a blacksmith in the service of the defendant, and to place within its furnace thereon a certain tube closed and sealed and filled with materials of an explosive nature, and that said furnace at the time contained a hot fire, and if the jury further believe that the defendant knew or by the exercise of ordinary care could and would have known that said tube so closed and sealed and so filled was likely in the natural course of events to explode when so placed in said furnace containing a hot fire, and if the jury further believe that said Howe upon such permission and invitation did place said tube so closed and sealed and so filled in said furnace then containing a hot fire, and that in consequence thereof said tube did explode and that plaintiff as a direct and immediate consequence of said explosion and without any fault or negligence on his [271] part contributing thereto was injured, then the jury will' find for plaintiff.” In addition to the objections already disposed of, the further criticisms are made upon this instruction of assuming the existence of facts in issue, especially that the tube was closed, sealed and filled with materials of an explosive nature, in erroneously employing therein the terms invited and by invitation and in not requiring the jury to find that defendant had knowledge of the contents of the tube. The second instruction as modified and given by the court is full answer to several of these objections if material, and it can not be perceived that Howe was .otherwise on defendant’s premises than by invitation express or implied as he was himself neither an officer nor workman in its employ. 4. The defendant in general terms urges that the instructions offered by it and refused by the court were proper and should have been given. An attentive consideration of them singly and collectively has not convinced us that the trial court committed reversible error in their declination; in so far as they were correct, they are embraced in the charge given to the jury and the remaining parts are obviously inappropriate for reasons already assigned, or as involving the issues of negligence of a fellow-servant or mere accidental occurrence, neither of which were supported in the proof introduced. This record strongly points to an occurrence for which the law imposes liability on defendant to those suffering from its consequences, the amount of the recovery is not assailed as extravagant and no error in the trial enforcing reversal has been disclosed. The judgment is affirmed. All concur.