Fortney v. Marblehead Lime Co.

ROBERTSON, P. J. —This action is prosecuted under sections 5426 and 5427, Revised Statutes 1909, by the plaintiff to recover for the death of her husband alleged to have been caused by the negligence of the defendant. She prevailed in the trial court and the defendant has appealed. The defendant was engaged in the manufacture of lime and for that purpose used a number of kilns about forty feet in height and fifteen feet in diameter across the top. When ready to operate the kilns a quantity of wood about twenty-five feet in depth was placed in the bottom of each kiln and when the kiln was partially filled with limestone rock this wood was set on fire and the filling with rock continued. By means of a tramway the rock was conveyed to the top of the .kiln and dumped in. When the kiln was filled at this dumping place it became necessary to have some employee shift the rock from there over into the unfilled portion of the kiln, which was done while the kiln was in process of burning. Several witnesses testified that on various occasions, although long prior to the accident complained of here, they had been overcome by gas and heat from these kilns while undertaking to shift the rock. Wit [408] nesses also testified that they had been assigned to this particular kind of work and were able to work at it only a few minutes at a time on account of the gas, and that the superintendent of the defendant was cognizant of that fact. The testimony in behalf of the plaintiff is to the effect that carbonic acid gas in dangerous quantities is generated from the kilns. Plaintiff’s husband was a farmer, inexperienced in this kind of work, and commenced work for the defendant on March 13, 1912. He was placed by the superintendent, without any warning of the dangers incident to the work, at the top of these kilns to throw back the rock from the point where they were dumped to the unfilled portion of the kilns, with instructions, implied at least, to continue to work there, which he did, during all of that day. There were four of the kilns being filled. When the plaintiff’s husband went home that night he was unable to eat any supper and soon after the supper hour had passed he became sick and continued to grow worse until three days later, when he died. Physicians testified in behalf of the plaintiff that in their opinion her husband died as a result of inhaling this gas, and those who testified for the defendant, in answer to questions hypothetically submitting the facts and circumstances leading up to the sickness and death of plaintiff’s husband, stated that in their opinion his death was not caused as a result of inhaling of carbonic acid gas while performing the work of handling the rock at the top of the kilns. The defendant assigns as error here the action of the trial court in permitting the plaintiff to amend her petition during the progress of the trial. At the time the amendment was made the defendant objected on the ground that it changed the cause of action. This objection was overruled, defendant excepted, filed its answer to the petition as amended and the trial proceeded. The defendant by answering waived any [409] error the court may have committed in permitting the amendment. [Scovill v. Glasner, 79 Mo. 449, 454; Liese v. Meyer, 143 Mo. 547, 556, 45 S. W. 282.] It is contended here by the defendant that, it having provided for the employees an iron rod or poker for the shifting of these rocks, no liability could attach by reason of the death of plaintiff’s husband in this case, because, if he had used the instrumentalities furnished him by the defendant, no harm- would have resulted. There is no testimony that the deceased was instructed in the use of these rods or directed to use them for this purpose, and the undisputed testimony is that the superintendent of the defendant put the deceased to work at the top of these kilns with instructions to throw the rock back. Hence, the defendant cannot escape liability by simply showing that these rods were about its plant. As above stated, there was testimony to the effect that other employees of the defendant had at times, long previous to this accident, been overcome by the gas and also testimony that at no time were the employees able to work on these rock piles at the top of the kiln but a few minutes at a time. All of these facts were brought home to the defendant and the jury may have properly found that at the time the husband of plaintiff was employed the defendant, knew, or by the exercise of ordinary care could have known, of the dangers incident to working on top of the kilns. The defendant insists that plaintiff’s husband was guilty of contributory negligence and for that reason its requested peremptory instruction should have been given. Where there were concealed dangers, as the jury may have properly found in this case, known to the employer and unknown to the employee, it was the duty of the employer to notify the servant of their existence. It is equally well settled that although the plaintiff’s husband may have experienced a peculiar sensation as the result of inhaling this gas, yet, if, by [410] reason of Ms Mexperience, he was not aware of the danger of it and continued to work as he was directed and assumed, as he had a right to do, that no fatal results would follow, then he was not guilty as a matter of law of contributory negligence. [Szernicke v. Ehrlich, 212 Mo. 386, 395, 111 S. W. 14.] There was no testimony in behalf of the defendant, other than that of two physicians, who testified that, under the facts disclosed by the testimony in this case, in their opinion the death of plaintiff’s husband was not caused as a result of inhaling the gas. There were only two instructions given in behalf of the plaintiff and nine instructions given for the defendant, all of wMch, in our opinion, fairly presented the law in the case. Upon these instructions the jury has passed on the facts, and there being no reversible error in the trial of the case, the judgment is affirmed. All concur.