Dowling v. Gerard B. Allen & Co.

• Decision Date: 31 October 1881
• Citation: 74 Mo. 13
• Court: Missouri Supreme Court
• Parties: DOWLING v. GERARD B. ALLEN & CO., Appellant.

74 Mo. 13

DOWLING

v.GERARD B. ALLEN & CO., Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals

AFFIRMED.

Martin & Lackland for appellant, relied on cGow an v. R. R. Co., 61 Mo. 528; Nolan v. Shickle, 3 Mo. App. 300; Marshall v. Schricker, 63 Mo. 308; Hayden v. Smithville Man'f'g Co., 29 Conn. 548.

Fisher & Rowell for respondent, relied on Coombs v. New Bedford C. Co., 102 Mass. 572; Conroy v. Vulcan Iron Works, 62 Mo. 35; Whalen v. Centenary Church, 62 Mo. 326; Mauerman v. Siemerts, 71 Mo. 105; Norton v. Ittner, 56 Mo. 351; Wyatt v. R. R. Co., 55 Mo. 485; Dowling v. Allen, 6 Mo. App. 195; Keegan v. Kavanaugh, 62 Mo. 233; Dale v. R'y Co., 63 Mo. 455; Cook v. R. R. Co., 63 Mo. 397; O'Flaherty v. R. R. Co., 45 Mo. 70; Patterson v. R. R. Co., 76 Pa. St. 389; Shearm. & Redf. on Neg., p. 11, § 11; Clarke v. Holmes, 7 Hurlst. & N. (Exchr.) 937; Cummings v. Collins, 61 Mo. 520; Steiner v. Moran, 2 Mo. App. 47; Stoddard v. R'y Co., 65 Mo. 514; Huddleston v. Lowell M. Shops, 106 Mass. 286.

HENRY, J.

We have adopted the statement of this case made by the court of appeals, having, from an examination of the record, found it substantially correct.

This is an action for damages for injuries done to plaintiff whilst in the employ of defendants, a corporation carrying on a foundry in St. Louis. At the close of plaintiff's case, defendants offered an instruction in the nature of a demurrer to the evidence, which was granted. Plaintiff then took a non-suit, and the court having overruled a motion to set it aside, plaintiff appeals. There was evidence tending to show the following facts: Plaintiff, a boy seventeen years of age, at the request of his father, was hired by the defendant. At the time he was thus hired, he had no experience in foundry business, or with machinery, and of this fact, Fisher, the foreman and general superintendent of defendant's foundry, who hired him, was informed at the time. During the first two months of his service with defendant, plaintiff was employed in running errands and in sweeping out. During the last month he was employed in the machine-shop and in the yard, where a turntable was being constructed, under the charge of one King, a fellow-servant of the plaintiff. The foreman of defendant, who had hired plaintiff, told him to go with King and do whatever he told him, and plaintiff did so. Plaintiff's father, who was also employed in the foundry, remarked the boy one day working under King's directions at a lathe, and told King that that was dangerous work for the boy, as he was “green.” To this King replied, that the boy was better and sharper than some of the men; and no more was said at the time. The boy himself told King that he did not like being employed to help him, and that King had better get some one to take his place; but King persuaded him to remain at the turntable. The turntable was inside the foundry. It was over thirty feet in diameter. Running east from this table, a little south from the center of it, was a shaft about twelve feet long and six inches in diameter. This shaft was covered, except for the space of three or three and a half feet nearest the turntable. The lower part of the shaft was about ten inches above the floor, and could be stepped over, at the place where it was not protected, and the men employed in the foundry were in the habit of stepping over it when going to and fro. At the end nearest the turntable, the shaft had a collar about an inch and a half thick, and from this collar projected a set-screw about two inches high. The plaintiff said in his direct examination: “The collar was a close fit. I don't exactly know how large the set-screw was. The shaft was between eight and ten inches high. I could step over it easily enough. The shaft revolved rapidly. The set-screw could not be seen when the shaft was revolving. I did not see the set-screw before I was injured,” and further on he said: “I had never taken particular notice of that set-screw before I was injured.” At the date of the accident, plaintiff had been working about three weeks at the turntable, with King. King directed him to stop the engine. This was done by pulling a string, to shut off the steam. The engine was at the other side of the turntable. It could be reached in two ways. The shorter way was to cross the revolving shaft. King told the boy to hurry, and he took the shorter way. In stepping over the shaft the leg of his trousers was caught by the set-screw. His leg was drawn under the shaft, and so badly broken as to render immediate amputation necessary to save his life.

The question presented for determination is not free from difficulty. The principles of law on the subject of the liability of the master to the servant for injuries received by the latter in the service of the former, are reasonably well settled, and the only difficulty lies in their application to the facts of a given case. One who enters the service of another, takes upon himself the ordinary risks of the employment. Smith v. St. Louis, Kansas City & Northern R'y Co., 69 Mo. 39; Porter v. Hannibal & St. Joseph R. R. Co., 71 Mo. 66; Coombs v. New Bedford C. Co., 102 Mass. 572. On the other hand, if there are concealed dangers known to the employer, and unknown to the employe, it is the duty of the employer to notify the servant of their existence. Ib. We think the doctrine equally well settled by the authorities, that although the machinery, or that part of it complained of as especially dangerous, is visible, yet, if by reason of the youth and inexperience of the servant, he is not aware of the danger to which he is exposed in operating it, or approaching near to it, it is the duty of the master to apprise him of the danger, if known to him. See cases above cited, and also Grizzle v. Frost, 3 Fost. & Finl. 622; Clarke v. Holmes, 7 H. & N. 937. It is not a conclusion of law from the fact that plaintiff was aware of the existence of the set-screw, and was seventeen years old, and sprightly for one of his years, that he was aware of the risk and danger of passing over the shaft while it was in motion.

In Grizzle v. Frost, supra, a girl sixteen years of age was employed in a dangerous service, and was injured by having her hand caught between two revolving rollers of the machinery. Cockburn, C. J., observed that: “If the owners of dangerous machinery, by their foreman, employ a young person about it, quite inexperienced in its use, either without proper directions as to its use, or with directions which are improper, and which are likely to lead to danger, of which the young person is not aware, as it is their duty to take unusual care to avert such danger, they are responsible for any injuries which may ensue from the use of such machinery.” In that case the revolving rollers, and the manner in which they worked, were visible. The plaintiff was sixteen years of age, but it was not inferred as a matter of law, because she was of that age and knew of the existence of the revolving rollers, that she was also aware of the risk and danger to which they exposed her. As was observed by the same learned Chief Justice in Clarke v. Holmes, supra: “A servant knowing the fact may be utterly ignorant of the risks.” The case of Hayden v. Smithville Manufacturing Co., 29 Conn. 558, cited by respondent, is not in conflict with but sustains these views.

Coombs v. New Bedford Cordage Co., supra, is directly in point. It was there held that the defendant had the legal...