Nickel v. Columbia Paper Stock Co. , 95 Mo. App. 226 ( 1902 )

ELLISON, J.

This action is for personal injury alleged to have resulted to plaintiff from the negligence of defendant.- The judgment in the trial court was for plaintiff.

The defendant was engaged in the business of manufacturing paper. -In prosecuting its business it had a branch house in Kansas City, Missouri, where it bought, collected, cleaned, baled and shipped old waste paper and rags to be manufactured into new paper. The general mode of carrying on the, business in Kansas City was, that defendant furnished sacks to various business institutions in Kansas City where large quantities of waste paper accumulated. These were gathered at intervals- by defendant’s wagons. Yarious persons in the city would likewise bring sacks or bundles of paper and rags to defendant’s place of business and sell them to defendant. The paper was received by defendant on the ground floor of its building and then carried to an upper floor where it was sorted and thrown into different receptacles provided. The sorting consisted, principally, in separating the kinds of paper thus brought in, fit for the manufacture of different kinds of new paper and of -separating such material as might not be fit for manufacture at all.

Plaintiff was engaged on the upper floor with several other women in doing this work. While so engaged there was brought to her from the lower floor, by the men in defendant’s employ for that purpose, and dumped upon the table where plaintiff worked, a. sack of old paper which had been gathered from some hospital. It contained pieces of cotton saturated with .blood and with urine and various medicines.' There-were also pieces of decaying human flesh emitting an unbearable odor. These substances so poisoned plaintiff that she became violently sick and suffered the injury for which she instituted this action. The defendant’s theory is that conceding the foregoing, which (omitting unnecessary detail), are the facts as the evidence in plaintiff’s behalf tended to show them, she has no case. That plaintiff’s business, in which she voluntarily engaged, was to meet with such dangerous conditions as just described. That her employment was to inspect the paper and that no right of action could accrue to her for an injury resulting-from the ordinary prosecution of the thing she was. hired to do. That she assumed the risk of such injurious consequences as happened to her.

The plaintiff’s theory is that defendant was guilty of negligence, either in gathering such poisonous material, or, in not having it inspected before carrying it. to plaintiff’s table for sorting. That consequently she-did not assume the risk of the act described.

The plaintiff did undoubtedly assume the ordinary risk of injury which would naturally or reasonably follow the character of employment in which she was engaged. Her work was not a cleanly work, nor was it free from the general risk of disease; a risk which the defendant, as her employer, could not reasonably wholly provide against. For, with diligent circumspection on the part of defendant, there would still be risk of disease in such work. But these facts do not exculpate defendant from an affirmative act inputting upon plaintiff’s work table a bundle of poisonous waste matter gathered from a place where such waste matter might reasonably be expected to be found. If defendant had gathered waste material from a smallpox pesthouse and placed on plaintiff’s table, whereby she became diseased, could it be said that she assumed the risk of such conduct? The extraordinary character of the occurrence is enough to demonstrate that plaintiff should not be held to have assumed the risk of its happening. Schroeder v. Railway, 108 Mo. 322, 329; Henry v. Railway, 109 Mo. 488.

We can not see how defendant can construct any reasonable theory of escape from the wrong done the plaintiff. If the foul and poisonous material was collected by agents for whose acts it is responsible, then it should answer to plaintiff for the consequences. And if the material was collected without plaintiff’s knowledge, or authority, then the jury has found that common prudence would have dictated an inspection thereof before handing it over to plaintiff for sorting. And if the business was such that such an injury as happened to plaintiff was likely to unavoidably follow, then it was defendant’s duty to have warned the plaintiff of the danger, or to have taken precautions against such consequences. Hysell v. Swift Packing Co., 78 Mo. App. 39; Mather v. Rillston, 156 U. S. 391; Smith v. Car Works, 60 Mich. 501; Smith v. Iron Works, 42 N. J. L. 467; Fox v. Peninsular Works, 84 Mich. 676.

The Hysell case is cited by defendant as supporting its theory of defense, but it evidently does not do so. On the contrary, the, rule there discussed, while freeing the defendant from liability in that case, establishes a liability in this case. There the harmful results from bacteria getting into the plaintiff’s eye in the manner they did, was so uncommon and so wholly beyond the range of precaution that we held an employer not liable for an injury resulting therefrom. The difference between the two cases is apparent. In that case the cause and resulting effect was, perhaps, without precedent. The injurious consequences or danger from the work done in that case was too remote to demand precaution on the part of the employer. Much the same may be said of Lawless v. Gas Light Co., 72 Mo. App. 679. In this case the danger of disease and other injuries, from the business in which defendant was engaged, was so reasonably likely to follow that it was at least properly asked of the jury whether prudence and care would not.have suggested inspection of the material before turning it over to employees for sorting. Curley v. Hoff, 62 N. J. L. 758; Nevin v. Sears, 155 Mass. 303. In the first of these cases it is said, that the master can not be expected to guard the servant against the very danger which the work he does necessarily involves, yet it is his duty in such circumstance to warn him of any latent danger attending it. The other case was where the master furnished blocks of rock to a stonemason who trimmed them into proper size for use in the wall. In blasting the blocks of rock from the quarry, dynamite cartridges were inserted in holes drilled into the rock and exploded by electricity. By some means a -cartridge was left in a block of rock unexploded and was so turned over to the mason. When he began to fashion it into shape for the wall it exploded and. injured him. It was held proper to submit the case to the jury on the question whether the master, in due care, and in view of his duty to furnish safe material to work upon, should have inspected the rock before turning it over to the mason.

But on the subject of inspection, defendant says that plaintiff was herself an inspector, and, as before stated, can not recover for injury resulting from the very thing she was hired to do. She was, however, not an inspector of what was proper material to be ■given over to defendant’s employees for assortment. 'Her duties began after that stage of the work had been performed by others. •

Complaint is made that the court gave plaintiff’s first instruction when it omitted reference to the issue whether plaintiff assumed the risk of injury. The instructions read together put that defense so plainly to the jury-that they could not have been misled. Owens v. Railway, 95 Mo. 181; Meadows v. Ins. Co., 129 Mo. 97; Anderson v. Railway, 161 Mo. 427.

The defendant has no ground of complaint of the court’s action on other instructions. Some of those given for defendant are exceedingly liberal and favorable to it. Instruction No. 10 was properly refused. It, in effect, informed the jury that if defendant did not actually know what was in the sack and plaintiff knew defendant did not know, she should assume it was something which would injure her, and consequently was to be peremptorily refused a verdict. The instructions as a whole presented the case with the utmost fairness and .liberality towards defendant.

We are satisfied that no ground exists which would justify our interference, and the judgment is affirmed.

All concur.