Nagle v. Laclede Gas Light Co. , 169 Mo. App. 243 ( 1912 )

REYNOLDS, P. J.

(after stating the facts).— These are the facts in the case. The sole question submitted to us and which we shall consider is, whether they authorized the submission of the case to the jury, or that being done, whether, on all the evidence, they are sufficient to sustain the verdict. Counsel for appellant argues that even on the petition itself, inasmuch as plaintiff’s excuse is that he did not “fully understand” the danger, that he has pleaded himself out of court; that this, in itself, is insufficient as an excuse for an assumption of risk. Without considering this as a matter of pleading, or in that aspect, but looking at'it in connection with the facts in the case, we are inclined to think that the criticism is hardly to be sustained. The rule is that if one fully conscious, of the danger, assumes the risk and is injured, he cannot recover, and it may be said that if he did not fully realize it, he ought to recover. But we do not pass on the petition. We are confining ourselves here to the evidence and considering the point made as to its sufficiency or insufficiency to sustain the verdict.

Preliminary to inquiry into this, however, there is a question duly raised by counsel for respondent as to the failure of the abstract to show that the motion for a new trial was filed during the term at which the judgment was rendered. For lack of this appearing in the record or in the abstract, counsel for respondent claims that there is nothing before us for consideration but the record proper. We think this objection has been overcome by what took place in this court after the case reached us. Counsel for appellant suggesting diminution of the record, certiorari duly issued to the clerk of the circuit court, as provided by section 205-2, Revised Statutes 1909, to send up a complete record. The clerk thereupon filed a certificate which, by stipulation of counsel, was accepted in lieu of a complete transcript and by consent, the record and abstract were amended, so that it now appears that on the 2d of April, 1910, and during the February, 1910, term of the circuit court, an order was entered of reqord in the circuit court, continuing all demurrers, motions and causes, then pending until the next term of the court. By the record it appears that the judgment was rendered on March 8, during the February term, 1910, of the* court and that the motion for new trial was filed on March 10, 1910. There is, therefore, no question but that it was filed within the four days provided by statute. The question then is, did March 10 fall within the February term of the court, the transcript not reciting that in so, many words. We have held that it not appearing that the motion for new trial had been filed at the term at which the judgment was rendered, proceedings in the cause, outside of those shown by the record proper, were not open to our review, and that while we take judicial notice of the commencement of a term of court we cannot do that as to its ending. [See Breimeyer v. Star Bottling Co., 136 Mo. App. 84, 117 S. W. 119.] In that case there was not only no recital that the motion had been filed at the same term at which the judgment was rendered, hut nothing in the record to inform us as to that or from which we could determine when the term ended. In the case at bar we have facts in the record as amended, from which we can determine when the February term ended. As stated the motion for a new trial was- filed on March 10, 1910, two days after the rendition of the - judgment. By the amended transcript we are advised that the February, 1910, term of the court did not end until April 2, 1910'. Hence we have here before us in the record evidence from which we can with certainty determine that when the motion for a new trial was filed, the February, 1910, term had not elapsed. [See Ray County Savings Bank v. Hutton, 224 Mo. 42, 123 S. W. 47; Nickey v. Leader, 235 Mo. 30, 138 S. W. 18.] The bill of exceptions containing the evidence and proceedings in the case is therefore before us for our consideration.

Turning then to the consideration of the facts, as they there appear, and which we have set out practically in full, we are unable to sustain the verdict and judgment in this case. It is clear that plaintiff was a man of full age, forty-five years, and an experienced pipe fitter, one who had worked for defendant around this station for something over four years. It is also clear by Ms own testimony, that it was. considered dangerous to venture down into this valve room, as we may call it, alone, if the gas pipes were leaking. He had been warned of that danger. He knew that under the rules of the company, and by the practice of its employees, repairs of leaks always had been made by at least two men,- generally three; that when it was necessary to go into this place to stop leaks, a respirator was used by the man who went into the pit. His excuse, that he was not fully aware of the danger, is not supported by the evidence in the case. He knew that if there was a leak it was not only against the rule of the company, but against its practice, for one man to attempt to stop a leak alone. The danger of going down alone, was therefore one of which he had been warned and was obvious. The claim of plaintiff, when analyzed, really is, that knowing the danger and the risk, he thought he would take a chance. This will not relieve one from his contributory negligence.

So much as to the case, if the displacement of the plug is to be classed as a leak. But it was not that, technically, nor as considered by the plaintiff himself or as treated by the company. It was the not unusual ease of a plug blowing out. There is not only no evidence in the case to indicate that the employer or its representatives had either any knowledge or any reason to believe that plaintiff, in disregard of positive directions to the contrary, would assume the risk of going alone to replace a plug; nor are there any facts in evidence, even assuming that the defendant, the employer and its representatives, knew or expected that the watchman or other employees, when a valve came out of the pipes, would go down alone to replace it, that he thereby incurred any risk of injury or ill effect from doing that. Plaintiff’s own testimony was that he had done that on many occasions without any injury. The testimony of the superintendent immediately in charge of the work was that it had been done on many occasions without any ill effect. Plaintiff himself testified that on this occasion the first time he went down and discovered, not a leak, but that the plug was out, it took him less than a second’s time, and that when he w,ent down again after cutting a plug, it took him less time than it did the first to go down, insert the plug and get back to the open air.

In O’Malley v. Missouri Pac. Ry. Co., 113 Mo. 319, l. c. 329, 20 S. W. 1079, our Supreme Court said, speaking of smoke in a tunnel which it was claimed had suffocated the husband of the plaintiff and caused his death, “There is no evidence which tends to prove that any officer of the defendant could have anticipated a condition of the tunnel which was dangerous to human life. After thirteen years of use without the development of danger of injury or death from smoke and gas, unless it has been shown that defendant’s roadmaster knew, or had means of knowledge, that unusual consequences would result to deceased from going into the tunnel on this occasion in obedience to the order,- there was no negligence in giving such orde'r, though in fact the tunnel at the time was filled with noxious and poisonous gases.” The judgment in that ease which had been for plaintiff was reversed without the cause being remanded. It seems to us that the facts in the case at bar come within the rule of law there announced ; if there is any difference, the case at bar presents a stronger one for the application of the principle there announced. Plaintiff himself testifies that he had frequently ran clown into this valve house to replace plugs that had been blown out without using the respirator and without being accompanied by any one and without any ill effect. S-o did other witnesses. There is no evidence in the case to show that the escape of gas on this occasion was worse than any other by reason of the misplaced or displaced plug. So far as the knowledge of defendant, through its officers, is concerned, the testimony is positive and uncontradicted that the superintendent himself and others had frequently gone down, inserted these plugs when displaced and returned without any ill consequences. Clearly the time within which it could be done was so infinitesimal, according to plaintiff’s own testimony taking less than a second, that it is not possible to believe that any one could have supposed serious consequences would follow from such brief exposure to the -escaping gas. As plaintiff himself says,'it escaped as gas does in a house when a burner is open. If it had heen a leak, it might have been a different matter. Plenee dismissing the question as to whether plaintiff should have waited until other men were there or until some one had been there to operate the respirator, and that defendant was, negligent in leaving plaintiff there alone, we, are unable to find any testimony in the case which carries any knowledge to the defendant or its officers and representatives that plaintiff would be exposed to any hazard in the discharge of the duties to-which he was assigned, even if he went alone to replace a plug. Somewhat in line with this case are those of Roessler & Hasslacher Chemical Co. v. Peterson, 134 Fed. 789, and Berry v. Kansas City, 128 Mo. App. 374,. 107 S. W. 415, in each of which a recovery was. denied plaintiffs. See also Bradley v. Chicago, M. & St. P. Ry. Co., 138 Mo. 293, l. c. 310, 39 S. W. 763.

Learned counsel for respondent argue that plaintiff never assumed the risk of his master’s negligence,, citing in support of this Curtis v. McNair, 173 Mo. 270, 73 S. W. 167. That is true as a general proposition. But so far from that decision sustaining the contention of these counsel, we think that it makes against them. Judg*e Valliant, delivering the opinion of the-court, says (l. c. 279): “A servant assumes the risk of danger incident to the work he engages to perform, and if he is injured as a result of that which was to be expected in the usual course of such work, the master is not liable. There are many kinds, of business, the operations of which are attended with danger which cannot be prevented by ordinary care and precaution. When one engages in such business and suffers from causes incident to its character, he has no legal remedy. In such case he suffers not because of negligence of his master, but because of a danger incident to the business. But the only risk the servant does assume,, is of that which is liable to. happen on account of the nature of the business when the master has used reasonable care to avoid such a result. It is the duty of the'master to exercise reasonable care, commensurate with the nature of the business, to protect his servant from the hazards incident to it. ’ ’ Applying that to the case at bar, the evidence shows that the master, the employer, in this case, had provided means, prescribed regulations, which were intended to prevent danger from one employee going alone into a place where gas was leaking and where it was escaping in such quantity as to endanger life; that plaintiff was aware of these precautions. He had been cautioned not to attempt, in case of an escape of gas from a leak, not to venture into this place alone. If we are then to assume that the gas was escaping in unusual quantities as from a leak, he had no business to attempt to repair it unassisted and unprotected; on the other hand, if it was a mere matter of a plug coming out and which he and others had been in the habit of replacing alone, and without using the respirator, and without suffering any ill consequences, it is impossible to hold the master, the employer, responsible, because on this particular occasion something happened that was contrary to all past experiences and against which he was not called upon to guard.

On consideration of the case and examination of the authorities cited by counsel for respondent, we are unable to find any which support their contention. Our conclusion is that the learned trial court erred in submitting the case to the jury without a direction to find for the defendant below; that the case was not one entitled to go to the jury on the evidence, and that the verdict and judgment are wrong.

The judgment of the circuit court in this cause is accordingly reversed.

Nortoni and Caulfield, JJ., concur. .