14 S.W. 751 (Mo. 1890), Dowling v. Allen

Citation:14 S.W. 751, 102 Mo. 213
Opinion Judge:Barclay, J.
Party Name:Dowling v. Gerard B. Allen & Co., Appellant
Attorney:J. Broadhead and Alexander Martin for appellant. Rowell & Ferriss for respondent.
Case Date:November 17, 1890
Court:Supreme Court of Missouri
 
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Page 751

14 S.W. 751 (Mo. 1890)

102 Mo. 213

Dowling

v.

Gerard B. Allen & Co., Appellant

Supreme Court of Missouri

November 17, 1890

Page 752

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

This is an action for damages for personal injuries sustained by plaintiff while in defendant's employ and by reason of alleged negligence of the latter. The defense was a denial and a plea of plaintiff's contributory negligence, which the reply put in issue.

The injury complained of occurred in 1872. The present action was begun in 1875. Plaintiff was obliged to take a nonsuit under the rulings of the circuit court at the first trial, but that judgment was reversed and the cause remanded on appeal to the St. Louis court of appeals ( Dowling v. Allen, 6 Mo.App. 195) whose judgment was approved by this court in an opinion reported in 74 Mo. 13. The cause was then retried in 1882 in St. Louis county (to which a change of venue had been taken). The result was a verdict for plaintiff for $ 10,000. An appeal was taken therefrom to this court where that judgment was reversed and the cause remanded in a decision reported in 88 Mo. 293.

In 1886 a new trial was had before the circuit court of St. Louis county with the aid of a jury. A verdict and judgment were then rendered for plaintiff for $ 12,000. After the usual motions the present appeal was taken.

The evidence tended to show that plaintiff was an employe in the foundry of defendant, and, at the time of the accident, seventeen years of age. He was inexperienced in the business, of which fact the superintendent who engaged him was aware. For some months he ran errands and did similar light work, but afterwards was put in the machine-shop and in the yard where a turntable for a bridge was being built under direction of King, another employe. His father told King it was a dangerous place for the boy. The foreman, who had engaged plaintiff, directed him to obey the orders of King.

On the day of the accident plaintiff had been working the rachet handle on the turntable. There was an engine, near by, which ran the machinery in the shop. At noon the steam was shut off from it and the hands stopped for dinner. There was, close to the turntable, a revolving shaft (connected with the machinery) on which was a set screw in a collar to keep the shaft in place. The latter was some twelve feet long, six inches in diameter and about ten inches above the floor. It was covered except for a space of about three feet at the end nearest the turntable. The collar at that end of the shaft was about an inch and a half thick, and the set screw about two inches high above it. When the shaft was running it made some two hundred and fifty revolutions a minute and the set screw could not then be seen, owing to the rapidity of its motion. The shaft, at the end where the set screw was, bore on a supporting pole, and further along the shaft was a pulley wheel.

It is not necessary to pursue this description further into details as the situation of the various parts of the machinery material to the case will be easily understood from the accompanying cut.

[SEE ILLUSTRATION IN ORIGINAL]

THE FOREGOING CUT REPRESENTS THE SITUATION AS DESCRIBED IN DEFENDANT'S TESTIMONY.

1. Is the place where young Dowling was working when he started to turn off the engine.

2. Is where King and Cook were standing.

3. Is the collar and set screw.

4. Is the engine he started to stop.

On the day of the accident when the noon hour came King told plaintiff to stop the engine. This could easily be done by anyone, and plaintiff had done it often...

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