72 S.W. 550 (Mo. 1903), Holmes v. Brandenbaugh

Citation:72 S.W. 550, 172 Mo. 53
Opinion Judge:MARSHALL, J.
Party Name:HOLMES v. BRANDENBAUGH, Plaintiff in Error
Attorney:Frank P. Sebree and John D. Wendorff for plaintiff in error. Harwood & Meredith for defendant in error.
Case Date:February 18, 1903
Court:Supreme Court of Missouri

Page 550

72 S.W. 550 (Mo. 1903)

172 Mo. 53



BRANDENBAUGH, Plaintiff in Error

Supreme Court of Missouri, First Division

February 18, 1903

Error to Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed and remanded (with directions).

Frank P. Sebree and John D. Wendorff for plaintiff in error.

The court rightfully sustained the demurrer to plaintiff's evidence, and committed error in setting aside the nonsuit and granting plaintiff a new trial for the following reasons: (1) Before plaintiff can recover in this case, he must not only show that he was injured but that the injury was caused by the negligence of the defendant, charged in plaintiff's petition. Hudson v. Railroad, 101 Mo. 34; Rutledge v. Railroad, 123 Mo. 136; Breen v. St. Louis Cooperage Co., 50 Mo.App. 212; Norville v. Railroad, 60 Mo.App. 416; Perse v. Railroad, 51 Mo.App. 171; Marshall v. Hay Press Co., 69 Mo.App. 260. (2) The accident was not caused by any defect or want of repair of the machinery or appliances. The only defect in the machinery or appliances complained of in plaintiff's petition was that one of the spiral conveyors, which was thirty or forty feet away from where the accident happened, was out of repair, and it was in no way connected with the machinery which plaintiff was manipulating at the time of the accident. Before plaintiff can recover on account of the defect in the spiral conveyor, he must show, not only that said defect was the proximate cause of the injury, but that defendant knew of the defect in time to have repaired it and prevented the injury. All of the machinery and appliances where the accident occurred -- shaft, pulley, setscrew, rope, etc., -- and all that could in any way have had anything to do with the accident were in perfect repair at the time of the accident. Hudson v. Railroad, 101 Mo. 34; Thompson v. Railroad, 140 Mo. 135; Stanley v. Railroad, 114 Mo. 620; Barclay v. Railroad, 96 Mo. 367; Breen v. St. Louis Cooperage Co., 50 Mo.App. 202; Brown v. Land & Lumber Co., 65 Mo.App. 166; Plefka v. Knapp, Stout & Co., 145 Mo. 316. (3) There was nothing out of repair, hidden or concealed about the machinery and appliances where plaintiff was injured, but everything was in plain view, open and obvious to plaintiff and in perfect repair, and the evidence shows that plaintiff was thoroughly familiar with the machinery, the manner in which he was operating it, and his situation and surroundings at the time of his alleged injury, and he therefore assumed the risk of being injured thereby. Harff v. Green, 168 Mo. 312; Lucy v. Hannibal Oil Co., 129 Mo. 40; Minnier v. Railroad, 167 Mo. 99; Bradley v. Railroad, 138 Mo. 303; Holloran v. Union Iron & F. Co., 133 Mo. 477; Nugent v. Milling Co., 131 Mo. 245; Junior v. Electric Light Co., 127 Mo. 83; Berning v. Medart, 56 Mo.App. 448; Fugler v. Bothe, 117 Mo. 475; Marshall v. Hay Press Co., 69 Mo.App. 260. (4) Defendant was not required to use any particular kind of machinery or appliances, but had the right to conduct his business in his own way, and plaintiff being familiar with the machinery and appliances and knowing the manner in which defendant was conducting his business, assumed the risk of injury thereby. Bradley v. Railroad, 138 Mo. 302; Blanton v. Dold, 109 Mo. 74; Bohn v. Railroad, 106 Mo. 433. (5) It was no part of plaintiff's duty to throw the belt off of the pulleys and tie it up as he was attempting to do at the time of the accident, nor had he ever been directed by any one to do so; but he went outside the scope of his employment and voluntarily undertook to do it, and therefore can not recover. Schaub v. Railroad, 106 Mo. 83.

Harwood & Meredith for defendant in error.

(1) The trial court rightfully granted the plaintiff a new trial as it erred in sustaining the demurrer of the defendant to the evidence of the plaintiff and in not submitting the case to the jury; for the evidence clearly showed that the defendant was negligent in the following particulars: (a) In allowing the spiral conveyor to become rusty and out of repair. (b) In not stopping the engine and machinery when the spiral conveyor was to be disconnected from the power running it. (c) In allowing the friction band pulleys with lever attachment to become so out of repair that they had to be thrown away, and in not replacing them with like machinery. (d) In selecting as appliances for the throwing off and tying up of belt, a stick and rope. (2) While the law does not require the master to furnish machinery absolutely safe, yet in selecting it or having it constructed for a particular purpose, he must use ordinary care and foresight and see that it is reasonably safe for the use for which it is provided, and kept in good repair. Steinhauser v. Spraul, 114 Mo. 551; Siela v. Railroad, 82 Mo. 435; Settle v. Railroad, 127 Mo. 336; Wendler v. Peoples' House Furnishing Co., 165 Mo. 536; Epperson v. Postal Tel. Cable Co., 155 Mo. 385; Connolly v. St. Joseph Press Printing Co., 66 S.W. 273. (3) The fact that the plaintiff knew that the appliances furnished him were defective will not charge him with contributory negligence or the assumption of the risk growing out of the use of such machinery, as the appliances were not so dangerous as to threaten immediate injury, and he reasonably supposed that he might safely use them by the exercise of proper care, and whether such was the case under the evidence was a question for the jury. Francis v. Railroad, 127 Mo. 669; Doyle v. M. K. & T. Trust Co., 140 Mo. 19; O'Mellia v. Railroad, 115 Mo. 205; Epperson v. Postal Tel. Cable Co., 155 Mo. 385; Duerst v. St. Louis Stamping Co., 163 Mo. 607; Adams v. McCormick Harvesting Machine Co., 68 S.W. 1055; Nichol v. Columbia Paper Stock Co., 68 S.W. 955; Prophet v. Kemper, 68 S.W. 956. (4) It was not contributory negligence or an assumption of the risk on the part of the plaintiff in obeying the order of the superintendent when ordered to throw off this belt with the appliances furnished by the defendant, and it did not preclude a recovery on his part unless the danger was so glaring that a man of ordinary prudence would, under the circumstances, have refused to do as he was ordered. Whether or not such was the case, was a question for the jury. Keegan v. Kavanaugh, 62 Mo. 232; Wendler v. Peoples' House Furnishing Co., 165 Mo. 527; Smith v. Coal Co., 75 Mo.App. 183. (5) Where...

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