Anderson v. Electric Park Amusement Co.

BROADDUS, P. J.

This is an action for a personal injury sustained by plaintiff when in defendant’s employ on July 27, 1905. He alleges that his injury was occasioned by the defendant’s negligence in failing to furnish him a reasonably safe place in which to do his work and a safe appliance with which to do it.

The defendant was the proprietor of what was known as Electric Park located in the east bottoms in Kansas City, Missouri. The business of .defendant Avas to afford entertainment to the public. There was a part of the park ground that was called the German Village. The plaintiff and two others named respectively Lewis Ross and Earl Bagby were employed as porters. Their work was in connection with a bar where drinks were dispensed to the defendant’s customers. The plaintiff at the time he was injured was engaged in operating a machine for chipping ice. This machine was fastened to a partition which separated the bar from the grounds of the German Village. The-top of this machine when attached to the partition was about the height of a man’s shoulders. It was a boxlike affair lined with galvanized iron, the receptacle of which for receiving the ice was about nine by twelve inches in dimensions. At the bottom was a revolving cylinder with teeth like those of a mowing machine, attached to which was a wheel with a handle. The machine was operated by turning by the hand, with the handle, which caused the cylinder to revolve. Blocks of ice of a size to fill the receptacle were placed in the box which coming in contact with the cylinder shaved or chipped the ice which fell out through a tube into a tub set on the floor. Near this was the refrigerator in which the blocks of ice were deposited when brought to the place by wagons. There was a box on the floor in which these blocks of ice, when taken from the refrigerator, were placed, where they were broken into suitable sizes to fit the receptacle in the machine.

The duties of plaintiff as stated in his own language were as follows: “I was supposed to look after the bottled beer — put it in the tank, see that it was iced in proper shape and kept cold, and was to chip the ice for mixed drinks, and to shake lemonade.” It appeared that in the operation pieces of ice would fall upon the floor and make it wet. And plaintiff states that two of the boards in the floor just in front of the machine were warped upward.

Plaintiff described the manner in which he was injured as follows: “I was chipping the ice and a piece of ice caught in the ragged lining and my only salvation to get it loose was to move it with my hand, because I had no other way to get it loose, and I put my hand in on a piece of ice and when I put it in and. moved the ice it caught under the end like, and I struck my foot on the board that stuck up on the floor, and. stumbled and slipped at the same time, and my hand went down between the ice and. the machine, to the knives. I don’t know wbat caused tbe wheel to turn or anything. I couldn’t say that unless my striking it with my body was the cause of it.” He stated that he stopped the machine when the ice caught. The wheel was on the outside of the box just in front of the operator.

The plaintiff from his position could by bending forward, look into the machine without moving from his position and could by reaching over also put his hand down into the box upon the ice. It was not necessary that he should have changed his position in order to loosen the piece of ice that got caught in the lining, but he says he did move, stumbled and slipped.

Plaintiff’s evidence tends further to show that the lining of the machine had holes in it, and was ragged, which caused it to prevent the ice from going down upon the knives; that he had notified defendant’s superintendent of the condition of the floor and the machine and the latter had assured plaintiff that it would be safe to continue the work and directed him so to do.

Defendant’s evidence tends to show that the machine was in good order, and that plaintiff was in the habit, against orders of the superintendent, of putting his hand into the box to press down the ice while, the cylinder was revolving; and that his injury was thé result of his so doing.

The plaintiff recovered and defendant appealed.

The defendant offered a demurrer to plaintiff’s evidence and renewed it at the close of all the evidence which the court overruled.

By giving to plaintiff full credence and his evidence every reasonable intendment we believe plaintiff made out a case for the jury. In arriving at our conclusion we have left out the wet and slippery condition of the floor as it was clear that it was plaintiff’s duty to see that it was kept in a reasonably safe condition.

The manner in which the plaintiff cláims to have received his injury is not incredible and not inconsistent with the physical facts surrounding the occurrence. Although there was no real necessity for him to have changed his position after he looked into the bos to see what had clogged the machine,' for he was then in a proper distance to have reached in and nnclogged it, yet he may naturally have done so. Any one so engaged would not in all probability have taken such a position and remained standing in it until the work was completed, but would change it from time to time without giving the matter any thought whatever; and no looker on would think of inquiring why he had made such changes. The plaintiff was asked why he changed his position but he was not philosopher enough to answer intelligently. He could only say, “I don’t know, but I did change.” And negligence under the circumstances should not be attributed to him for having done so.

The instructions given by the court we think properly put the case to the jury with the exception of number two given at the instance of plaintiff. It reads as follows: “The court instructs the jury that it was the defendant’s duty to exercise reasonable care to furnish plaintiff with machinery in good repair and a reasonably safe place in which to perform his work, etc.” The words we have italicized should have read “in reasonably good repairThis kind of an instruction has so often been condemned that it is useless to refer to the decisions to that effect. It is a question however whether that given for defendant cured the error. It reads as follows: “If you find from the evidence that the machine and floor in question were in reasonably safe condition, your verdict must be for defendant.”

The trouble is that the jury_have two standards by which they are to determine the defendant’s negligence, to-wit, whether it was required to have a machine in safe condition or in one that was reasonably safe. Sometimes the courts hold that such errors are cured when' proper instructions are given for the same party defining negligence because they must all be construed together, but we do not believe this rule ought to be extended so as to make the instructions of the opposite party curative of such errors. And sometimes such errors are disregarded where it is apparent that the jury could not have been misled; and where the verdict is clearly for the right party. We are not satisfied the verdict was for the right party, on the contrary we believe it was against the great weight of the credible testimony in the case, and the error may have had some influence in bringing about the result. The presumption is that the jury read the instructions, and that they were guided by one or the other in determining the question of care on the part of defendant, and want of care on the part of the plaintiff, but which is not known. They were contradictory and at least tended to confuse the minds instead of properly enlightening the jury as to the issues in the. case. For this error the cause is reversed and remanded.

All concur.