Winkler v. St. Louis Basket & Box Co.

• Decision Date: 26 January 1897
• Citation: 137 Mo. 394,38 S.W. 921
• Court: Missouri Supreme Court
• Parties: WINKLER v. ST. LOUIS BASKET & BOX CO.

38 S.W. 921

137 Mo. 394

WINKLER v. ST. LOUIS BASKET & BOX CO.

Supreme Court of Missouri, Division No. 1.

January 26, 1897.

INJURY TO EMPLOYE — ASSUMPTION OF RISK.

One who engages to manage a car, and continues in the employment, with knowledge of the character of the brake in use on it, and the manner of using it, with the danger from the use of it obvious, being injured thereby, cannot recover from the master on the ground that it was negligence not to use another kind of brake.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by Adolph Winkler, administrator, against the St. Louis Basket & Box Company. Verdict for plaintiff was set aside, and plaintiff appeals. Affirmed.

J. Hugo Grimm, for appellant. J. D. Johnson, for respondent.

MACFARLANE, J.

This suit was commenced by Emelie Winkler, as widow of Louis Winkler, to recover damages for the death of her husband on account of the alleged negligence of defendant. A trial resulted in a verdict for plaintiff, which, on motion of defendant, was set aside, for the reason, as given, "that the court refused to grant, at the end of the entire case, an instruction, as prayed by defendant, that, under the pleadings and evidence, the plaintiff was not entitled to recover." From this order plaintiff appealed. Pending the appeal said plaintiff has died, and the appeal is prosecuted in the name of her administrator.

Briefly told, the facts are these: Defendant's factory was located about 1,000 feet from the river. It had a rail or tramway, from the factory to the river, on which it ran a flat car for the purpose of conveying logs from the river to the factory. This car was about 12 feet long, 6 feet wide, and 20 inches high. The wheels were about 18 inches in diameter. Four pieces of strong oak timber were securely bolted across the top of the car at regular intervals, and projected about 8 inches beyond the outside of the car, and 4 inches beyond the wheels. There was an incline downward from the factory to the river. The car, when loaded with logs, was drawn from the river bank to the factory by means of a cable, one end of which was attached to the car, and the other end to a drum at the factory, and the car was drawn up by steam power. It was carried back to the river by its own momentum. For the purpose of regulating the speed of the car when going downgrade, defendant had provided a piece of timber, or shaft, 5 feet long, and 4½ inches thick at one end, and tapering to 2 inches thick at the other end. At the thick end of this shaft a block 12 inches long and 3 inches thick was securely nailed, and this was covered with a leather shoe. The shaft extended beyond the block about 6 inches. The brake was used by putting the block end in a slanting direction between the right fore wheel and the projecting end of the cross timber, immediately in front of and above the wheel, until the shoulder on the end and upper side of the shaft caught against the end of the cross timber, and by then pressing down on the handle of the shaft, so as to press the leather shoe against the face of the wheel. Louis Winkler had been employed to assist in operating this car for three years, during which time this character of brake had been constantly used. The brake in question was...