18 S.W. 1149 (Mo. 1892), Blanton v. Dold

Citation:18 S.W. 1149, 109 Mo. 64
Opinion Judge:Barclay, J.
Party Name:Blanton v. Dold et al., Appellants
Attorney:Chase & Powell for appellants. John W. Beebe for respondent.
Case Date:March 14, 1892
Court:Supreme Court of Missouri

Page 1149

18 S.W. 1149 (Mo. 1892)

109 Mo. 64

Blanton

v.

Dold et al., Appellants

Supreme Court of Missouri, First Division

March 14, 1892

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Plaintiff sued for personal injuries and obtained a verdict and judgment, from which defendants appealed. The facts appear in the opinion of the court.

Affirmed.

Chase & Powell for appellants.

(1) Plaintiff's evidence failed entirely to establish the fact that the blood mill was started by any acts of omission or commission in construction of defendants, which plaintiff alleged in his petition to be the cause of the injury. Plaintiff charged that the brakes used were not the safest kind, and that by reason thereof the cars moved after the brakes were set. "The burden was on plaintiff to show that the injury was attributable to the negligence of defendant. He did not establish his case to show that he was injured without his fault by the movement of the cars when he was attempting to get upon them. This single fact proved neither neglect nor the absence of negligence on the part of the company." Henry v. Railroad, 81 N.Y. 374; Duffy v. Upton, 113 Mass. 544. (2) The plaintiff who avers negligence must prove it, and evidence that the manner in which machinery was run was not the safest manner in which to run it was not proof that said manner was careless or negligent. Muirhead v. Railroad, 19 Mo.App. 643; Conway v. Railroad, 24 Mo.App. 238; Leduke v. Railroad, 4 Mo.App. 488. (3) The fact of an injury and the possibility of guarding against it do not necessarily make out a case of culpable negligence. Schroeder v. Car Co., 56 Mich. 134. The plaintiff who avers must prove negligence. Smith v. Railroad, 69 Mo. 37. (4) The mill gearing appliances, belts, pulleys, shifting bar, pins, ropes and weight were constructed in the usual and customary way for construction of such machinery and the appliances for the running thereof, and were the same that had for years been used by defendants, and the same that all other manufacturers used, and that such construction and methods of operating said mill and appliances therefor were reasonably safe, and such construction and use thereof by defendant was not negligence. Plaintiff's action is based solely on defective and unsafe construction of mill and its gearing and appliances for running it. Now defendants, having used a mill and appliances for running it constructed in the usual and customary manner and reasonably safe, are not guilty of negligence. It is not the duty of defendants to furnish absolutely safe appliances. It is sufficient that the master furnish appliances that are reasonably safe. Tabler v. Railroad, 93 Mo. 84; Muirhead v. Railroad, 103 Mo. 251; Porter v. Railroad, 71 Mo. 76; Hickey v. Taaffe, 105 N.Y. 34. (5) When there is no conflict in the testimony, and all the causes contributing to produce an injury are known and unquestioned, whether a given act in the chain of causation is the remote or proximate cause of such an injury, is a question of law for the court. Henry v. Railroad, 76 Mo. 288; Ashbrook v. Railroad, 18 Mo.App. 290; Hickey v. Taaffe, 105 N.Y. 26. (6) The court erred in giving and refusing instructions.

John W. Beebe for respondent.

(1) There was abundant testimony showing that defendants were guilty of gross negligence, causing the injury, and that the plaintiff was free from contributory negligence. These questions were submitted to the jury in a series of instructions exceedingly favorable to the defendants. Donahue v. Brown, 27 N.E. 675; Keegan v. Cavanaugh, 62 Mo. 230; Porter v. Railroad, 60 Mo. 160; Dale v. Railroad, 63 Mo. 455; Waldhier v. Railroad, 87 Mo. 48; Devlin v. Railroad, 87 Mo. 545; Long v. Railroad, 65 Mo. 225; Tabler v. Railroad, 93 Mo. 79; Bowen v. Railroad, 95 Mo. 268; Parsons v. Railroad, 94 Mo. 286; Huhn v. Railroad, 92 Mo. 440. (2) The starting up of the machine under the circumstances (it having started two or three times before with the weight on the rope), and not from any cause operating in plaintiff's department, and beyond his vision and knowledge, of itself, without further proof on plaintiff's part, raise a presumption of negligence, calling for proof on defendants' part that such unusual and dangerous movements occurred from causes for which they were not responsible; numerous authorities sustain this contention, and no authority has examined it contra when applied to the facts of the case. Briggs v. Oliver, 4 Hurl. & C. 403; Byrne v. Boadle, 2 Hurl. & C. 722; Scott v. Dock Co., 3 Hurl. & C. 596; White v. Railroad, 144 Mass. 404; Mullen v. St. John, 57 N.Y. 567; Bose v. Trans. Co., 20 Blatch. 411. (3) But in the case at bar plaintiff went further, and showed the defective condition of the gearing, and the insufficiency of the appliances furnished for preventing the machine from starting up, and brought home actual knowledge to the master of the dangerous condition of the appliances. (4) Defendants did not attempt to show that the starting up of the machine was from a cause beyond their control, and for which they would not be responsible. This they were bound to do, under the state of the proof, to exculpate themselves from the charge of negligence. Authorities cited supra. (5) The plaintiff was not guilty of contributory negligence. He had a right to rely on the assurance of the master mechanic, that the appliances to prevent the machine from running were safe. Relying...

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