61 S.W. 678 (Mo. 1901), Lore v. American Manufacturing Company

Citation:61 S.W. 678, 160 Mo. 608
Opinion Judge:GANTT, J.
Party Name:LORE v. AMERICAN MANUFACTURING COMPANY, Appellant
Attorney:Kerr & Tittman for appellant. Martin & Bass and T. Percy Carr for respondent.
Case Date:March 12, 1901
Court:Supreme Court of Missouri
 
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Page 678

61 S.W. 678 (Mo. 1901)

160 Mo. 608

LORE

v.

AMERICAN MANUFACTURING COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 12, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein, Judge.

Affirmed.

Kerr & Tittman for appellant.

(1) The peremptory instruction to find for the defendant, asked at the close of the whole case, brings up the entire evidence for review. Hilz v. Railroad, 101 Mo. 36; Hite v. Railroad, 130 Mo. 132. (2) The condition of the floor was incident to appellant's business. Respondent assumed all risks of her work arising out of the condition of the floor. Jackson v. Railroad, 104 Mo. 448; Luce v. Oil Co., 129 Mo. 32; Nugent v. Milling Co., 131 Mo. 241. (3) The condition both of the guard and of the floor was continuous and obvious, and if either involved danger respondent assumed the risk of it. Fugler v. Bothe, 117 Mo. 475; Steinhauser v. Spraul, 127 Mo. 541; Helfensteller v. Medart, 136 Mo. 619; Plefka v. Knapp-Stout Co., 145 Mo. 316. (4) The condition of the floor and respondent's fall in consequence of it, was the proximate cause of her injuries. The opening in the guard was a condition merely, or at best, the remote cause, and gives respondent no cause of action. The law always refers the injury to the proximate and not to the remote cause. Shearman & Redfield on Negligence, sec. 9; Henry v. Railroad, 76 Mo. 288; Stepp v. Railroad, 85 Mo. 229; Stanley v. Railroad, 114 Mo. 606. (5) Respondent's fellow servants bent the rods in the guard. She can not recover from the master for an injury due to the misconduct of her fellow servants. McDermott v. Railroad, 30 Mo. 115; McGowan v. Railroad, 61 Mo. 528; Parker v. Railroad, 109 Mo. 362; Card v. Eddy, 129 Mo. 510. (6) Respondent is guilty of contributory negligence and the court below erred in refusing to instructon that subject. (7) The case is one of inevitable accident, and appellant's instruction on that subject should have been given. (8) The court erred in its construction of section 3 of the Act of April 20, 1891. Laws 1891, p. 159, now sec. 6433, R. S. 1889.

Martin & Bass and T. Percy Carr for respondent.

(1) Defendant was guilty of negligence per se in failing to safely and securely guard its gearing, as provided by statute. Laws 1891, p. 159, now sec. 6433, R. S. 1899; Colliott v. American Manufacturing Company, 71 Mo.App. 163; Caswell v. Worth, 5 El. & Bl. 849; Messenger v. Pate, 42 Iowa 443. (2) Defendant is liable, the injury to plaintiff having been caused by defendant's negligence conspiring with an accidental cause. Musick v. Packing Company, 58 Mo.App. 322; Bassett v. St. Joseph, 53 Mo. 290; Yocum v. Town of Trenton, 20 Mo.App. 489; Hull v. City of Kansas, 54 Mo. 598; Brennan v. St. Louis, 92 Mo. 482; Brinck v. Railroad, 17 Mo.App. 177; Waller v. Railroad, 59 Mo.App. 410.

OPINION

Page 679

[160 Mo. 611] GANTT, J.

This is a civil action for damages to plaintiff, an employee in a jute factory owned and operated by defendant, on the twenty-fourth of November, 1894, alleged to have been caused by the negligence of defendant in failing to safely guard its gearing on a machine used for spinning jute in [160 Mo. 612] the manufacture of bagging, as required by an act of the General Assembly, approved April 20, 1891, and in permitting the guard to said gearing to become and remain out of repair, whereby plaintiff's right hand and forearm were, without fault on her part, thrown through said guard and into the cog-wheels and gearing of said machine and were torn, lacerated and crushed.

The answer was a general denial and a plea of contributory negligence.

There was a verdict and judgment for plaintiff for $ 2,750, from which defendant appeals.

The facts appear to be that at the time of the accident plaintiff was a girl about sixteen years old. She brought the action soon after she reached her majority. The cause was tried in 1896, before a special jury, and she was awarded $ 2,000. Defendant appealed to the St. Louis Court of Appeals and that court for error in the instructions reversed and remanded the cause. The case is reported as Colliott v. American Mfg. Co., 71 Mo.App. 163. Since then plaintiff has married and her present name is Rose Lore.

There is little if any conflict in the evidence. Plaintiff was employed at the time of the accident as spinner in the defendant's factory or bagging mill, known as the Southern Mills, in the city of St. Louis. The machine by which she was injured is a large machine some nineteen feet in length and about four feet wide, and is known as a spinning machine. It is operated by two girls, the spinner, who is ordinarily in front, and the "end-minder," whose ordinary position is in the rear; but it is the duty of both girls to keep the machine running, and to pass around the frame to help one another whenever necessary. The material used is what is commercially known as jute butts, which is manufactured into bagging for covering bales of cotton. In the rear of the machine are forty-eight [160 Mo. 613] cans filled with this material in the form of long strings called sliver, which are carried through the machine from the rear to the front in the process of spinning.

This sliver is loose and flimsy and easily parted, and it is the business of the two girls to watch and "fix up" the ends whenever they break down, that is to say, whenever one of the strings of sliver happens to break there is what is known as an "end" which has to be fixed up by the operators. Ordinarily it is the duty of the spinner to fix up the ends in the front, and of the "end-minder" in the rear, but it frequently happens that a number of ends break down at once in the rear of the machine, and it is necessary on these occasions, in order to keep the machine running, for the spinner to pass around to the rear and help the "end-minder" put them up. In behalf of plaintiff at the trial was produced the testimony of plaintiff herself, and five other employees of the factory, spinners and "end-minders," all of whom testified that it was the duty of the spinners and "end-minders" to help one another in their work whenever it was necessary in order to keep the machine running, and to pass around the machine whenever necessary for that purpose.

The floor of the factory is conceded to have been very slippery, so much so as to be very hard to walk upon, and persons walking were liable to slip and fall at any moment. The jute material was prepared for spinning with an oil which was rubbed into the floor by the constant sweeping of the waste jute over the floor, and also a considerable quantity of the oil used for lubricating the machinery was thrown off upon the floor and rubbed in in the same manner.

The driving machinery or gearing of the machine was located at one end, being the end opposite to plaintiff's ordinary position in operating the machine, and was located on a narrow passage between plaintiff's machine and the next machine [160 Mo. 614] in the same row. This passage was only about two feet wide, or barely wide enough to allow the girls to pass through in the discharge of their ordinary duties; and in order to protect the employees passing through this narrow aisle from the cog-wheels at the end of plaintiff's machine, there was placed in front of and around this gearing a guard, consisting of vertical iron rods about three-eighths of an inch in thickness, fixed above and below to iron bars or crosspieces. These rods or guard-wires in front of the gearing were located about an inch and one-half apart, and were made of soft iron, round, and about three feet in length; but prior to the accident to plaintiff, several of these rods or wires had become bent, so as to produce a considerable opening just at the corner of the machine, which was large enough to allow the hand of any ordinary person who might fall on the slippery floor, to pass through so as to come into contact...

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