88 S.W. 167 (Mo.App. 1905), Fouts v. Swift & Company
| Date | 05 June 1905 |
| Citation | 88 S.W. 167,113 Mo.App. 526 |
| Docket Number | . |
| Parties | JAMES R. FOUTS, Respondent, v. SWIFT & COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Page 167
February 6, 1905;
Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.
AFFIRMED.
Judgment affirmed.
(1) The petition failed to state facts sufficient to constitute a cause of action, and the court erred in overruling the defendant's motion made at the opening of the trial, to exclude all evidence under the same. Mallinckrodt Works v. Neinmich, 169 Mo. 397; Burnham v. Boyd, 167 Mo. 188-189; Knapp-Stout v. City, 156 Mo. 352-353; Sidway v. Land Co., 163 Mo. 374. (2) No duty on the part of the defendant to screen or guard the fan is alleged. (3) No facts are stated from which such a duty could arise. Field v. Railroad, 76 Mo. 614. (4) Negligence can only be predicated upon the existence of a duty owing to the plaintiff, which has been violated. Hallihan v. Railroad, 71 Mo. 116; Field v. Railroad, 76 Mo. 614; Troth v. Norcross, 111 Mo. 630; Richards v. Rough, 18 N.W. 787; Bradley v. Railroad, 138 Mo. 302; Winkler v. Basket Co., 137 Mo. 400. (5) The plaintiff had full knowledge of the dangers to be apprehended, if any portion of his person came in contact with the wings of the fan. Even in cases where the machine or implement is defective, the law charges the servant with full notice of the danger. Porter v. Railroad, 71 Mo. 77, 78; Hulett v. Railroad, 67 Mo. 239; Nugent v. Kauffman, 131 Mo. 256. Electrical Co. v. Kelley, 110 Ill.App. 334; Hill v. Drug Co., 140 Mo. 433; Naylor v. Railroad, 53 Wis. 661; Walsh v. Railroad, 27 Minn. 367. (6) The petition assumes that by the common law, the defendant was required to guard or screen this fan. The common law made no such requirement of the defendant. Schroeder v. Car Co., 56 Mich. 132; Townsend v. Langlese, 41 F. 919; Sullivan v. Mfg. Co., 113 Mass. 396; Clark v. Barnes, 37 Hun 389; Slepinson v. Duncan, 73 Wis. 404; Sanborn v. Railroad, 35 Kan. 292; Lore v. Mfg. Co., 160 Mo. 608. (7) The defendant was not bound to screen the fan. Bradley v. Railroad, and other cases, supra. (8) Here the plaintiff was performing his regular duties entirely apart from and independent of the fan. No facts are stated in petition which show any possible relation betwen the fan and his duties or work. The fan was stationary. One injured by it must, by his own action bring himself within its field of operation. It could not move from its position to his, and strike him. Wray v. Electric Co., 69 Mo.App. 388; Jackson v. Railroad, 104 Mo. 148; Fugler v. Bothe, 117 Mo. 494-496; Halloran v. Iron Co., 133 Mo. 477; Lucy v. Oil Co., 129 Mo. 39; Burnes v. Railroad, 129 Mo. 41; Cothron v. Packing Co., 98 Mo.App. 343; Marshall v. Hay Press Co., 69 Mo.App. 280; Bradley v. Railroad, 138 Mo. 302; Winkler v. Basket Co., 137 Mo. 400; Electrical Co. v. Kelley, 110 Ill.App. 334; Watson v. Coal Co., 52 Mo.App. 372; Moore v. Railroad, 55 Mo.App. 493; Harff v. Green, 168 Mo. 312; Cordage v. Miller, 126 F. 495. (9) The rule of law is, that where the employee can, by the exercise of ordinary care and attention to his duties, protect himself from injury he will not be allowed to recover damages from his employer. Smith v. Railroad, 61 Mo. 590; Bridges v. Railroad, 3 Mees. I. N. 244; Moore v. Railroad, 176 Mo. 544; Doerr v. Brewing Assn., 176 Mo. 547; Spiva v. Coal Co., 88 Mo. 168.
(1) The petition states facts sufficient to constitute a cause of action. (2) Plaintiff did not assume the risk of being injured by the fan. Curtis v. McNair, 73 S.W. 167; Wendler v. Furnishing Co., 165 Mo. 527; Settle v. Furnishing Co., 127 Mo. 336; Pauck v. Dressed Beef Co. , 159 Mo. 467; Carter v. Baldwin, 81 S.W. 204. (3) Defendant's second contention is that the demurrer asked by it at the close of the plaintiff's evidence should have been sustained because it showed plaintiff to be guilty of such contributory negligence as precluded him from recovering. Upon this question the law is well settled in this State. If the danger is not so glaring that a man of common prudence would not incur the risk then the servant if he remains can recover. (4) In other words if the danger is such that reasonable men might differ as to its imminence, or when the danger is such as "not to threaten immediate injury," or when it is reasonable to suppose that it may be safely incurred "with great caution or skill," the plea of contributory negligence should be submitted to the jury. Smith v. Railroad, 61 Mo. 591; Stoddard v. Railroad, 65 Mo. 521; Conroy v. Iron Works, 62 Mo. 39; Hamilton v. Mining Co., 108 Mo. 376, and cases cited.
OPINION
[113 Mo.App. 529]
This is an action for personal injury which resulted in plaintiff's favor in the trial court. We can dispose of a considerable part of defendant's objections to the judgment by correcting an impression which must have prevailed when the brief was written as to the nature of the cause of action which plaintiff has set out. He has not complained
Page 168
of defective machinery in the sense of being compelled to use such machinery. The machine which injured him was not one with which he worked, but it was one situated near by the place where he worked and, as he contends, made that place unsafe. Under the latter view of the petition it...
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