Omans v. Hammond Packing Co. , 151 Mo. App. 557 ( 1910 )

ELLISON, J.

Plaintiff was an employee of defendant, working under direction of one of its foremen. His work consisted of carrying “provision racks for freight cars and washing out the ears.” While so engaged he received an injury to one of his eyes, which he charges was caused by defendant’s negligence, and for which he instituted this action. He recovered judgment in the trial court.

It appears that a substance known as caustic soda was used by. defendant in the cleaning or washing of cars in which its meat products were shipped, and that a part of plaintiff’s service was to wash such cars. That the soda was a substance very dangerous in use and if particles of it came in contact with human flesh, would inflict serious injury by burning. That defend- and kept the soda in large solid blocks and on the day of plaintiff’s injury defendant’s foreman directed him to take a pick and break off in pieces a bucket of the soda for use in Ms work. That defendant was aware of the dangerous character of the substance, and that he was not. That in obeying such instructions plaintiff took the pick and struck upon the block, when small particles flew in different directions, some of these striking plaintiff’s eye and burning it so severely as to impair the sight and inflict permanent injury.

Defendant insists that plaintiff was a man of education and scientific knowledge and that he knew as much about the properties of caustic soda and the danger in using it, and how it should be used, as did the defendant. If this could be conceded to be an established fact in the case it would justify a reversal of the judgment. But those were issues in the case upon which evidence was heard by the jury and we must accept the verdict as conclusive that plaintiff did not have the knowledge as' claimed by defendant.

But defendant further contends that it is common knowledge that particles of caustic soda will burn or eat into the flesh; especially if coming in contact with membrane such as is around the eyes. Defendant contends that this is as well known as that hot water would scald. It is true that defendant had a right to presume plaintiff was a man of common sense and therefore would guard himshlf against injury where the danger was patent. [Pulley v. Standard Oil Co., 136 Mo. App. 172; Ruchinsky v. French, 168 Mass. 68; Dresser’s Employers’ Liability, sec. 98.] But we do not regard the facts as disclosing such state of case as would justify a court in declaring, as a matter of law, that the characteristics of caustic soda and the dangers arising from its use, were so well known as to create a conclusive presumption that plaintiff knew them and assumed the risk of injury. The substance •of these observations were submitted to the jury at defendant’s request as an issue of fact, and we accept the finding thereon.

As an entire series the instructions were free from error. All those asked by defendant were given, save three, and two of these were in the nature of a demurrer. The third was in part a comment on the evidence. As a whole, it was substantially covered by those which the court gave at defendant’s instance, especially Nos. 5 and 6.

We do not feel that we would be justified in reversing the judgment on the ground that the verdict was against the weight of the evidence.

The judgment is affirmed.

All concur.