Atlas Portland Cement Co. v. Hagen

• Decision Date: 12 May 1916
• Docket Number: 4544.
• Citation: 233 F. 24
• Parties: ATLAS PORTLAND CEMENT CO. v. HAGEN. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

233 F. 24

ATLAS PORTLAND CEMENT CO. v. HAGEN. ^[1]

No. 4544.

United States Court of Appeals, Eighth Circuit.

May 12, 1916

George A. Mahan, of Hannibal, Mo. (Albert R. Smith and Dulany Mahan both of Hannibal, Mo., on the brief), for plaintiff in error.

Ben E Hulse, of Hannibal, Mo. (A. Clay Williams, of Pittsfield Ill., and D. H. Eby, of Hannibal, Mo., on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and REED, District Judge.

SMITH Circuit Judge.

The plaintiff in error, the Atlas Portland Cement Company, is a corporation organized under the laws of Pennsylvania. It was the defendant below, and is hereafter so styled here. It has for years been engaged in conducting a cement manufacturing plant at Ilasco, Ralls county, Mo. The defendant in error the plaintiff below, and so hereafter styled here, was employed by the defendant in what was known as clinker mill No. 1, a part of plant 5, under a foreman. This mill had in it a line shaft extending from east to west about 100 to 125 feet long. This was 9 inches in diameter and was about 6 feet from the floor. Upon it were 16 wheels or pulleys, which by belts operated 16 Huntington mills, 8 on each side. The plaintiff had charge of the 8 south mills. The shaft revolved 150 times a minute. The wheels or pulleys referred to were about 32 inches across the face and the one here in question was 4 feet in diameter.

This wheel, like the others, was so arranged that it could be detached from the power, so as to stop the Huntington mill to which it was attached. This was done by placing a collar in two pieces bolted around the shaft to the right of the wheel and placing a spider or clutch to the left of the wheel. This spider or clutch always revolved with the shaft, even when the pulleys or wheels were standing still. When it was desired to have the mill put in motion the spider or clutch was by a small wheel thrown against the large wheel or pulley on which the belt ran and seized a flange on the pulley or wheel with its four arms; and when it was desired to stop the mill by the same device the spider or clutch was withdrawn from the pulley wheel and it came to a stop. This pulley or wheel weighed about 1,800 pounds. There was upon it a hub, and projecting from it to the rim 12 spokes in pairs, or 6 pairs to the wheel. There were 4 grease cups to this wheel. They were attached to the hub between the spokes in pairs. The pairs were opposite each other on the hub and 12 to 15 inches apart. These grease cups had frequently to be screwed down, and it was a part of plaintiff's duty to do that. It is manifest that this could not be done from the left side of the wheel, as the revolving spider or clutch would cut off the operator's arm. It was therefore necessary to do this work wholly from the right side. If 2 of the grease cups stopped at the bottom and 2 at the top, it was necessary to screw the 2 at the bottom down from the floor and then climb upon an idler with one foot and upon another iron with the other and screw down those above the hub. There is a slight difference in the testimony as to how far the operator had to reach into the wheel to perform his duty, but he had to reach in from 8 to 10 inches from the collar to reach the first grease cup and 20 or 25 inches to reach the second.

On September 23, 1913, the plaintiff, having stopped the mills of which he had charge in pursuance of orders from his superior, attempted to screw down the grease cups, and succeeded in doing so at several of the mills, and screwed down the lower cups at mill No. 7. While he was attempting to screw down the upper cups at this mill, or at the corresponding point upon the shaft to this mill, and while the center of his body was, in the discharge of his duty, brought close to the line shaft, a projecting bolt or bolt head in the collar referred to caught in his jacket, threw him up over the line shaft and to the concrete floor north of it, and fractured his left leg. He brought this suit to recover damages. The case was tried and a verdict was returned in his favor, upon which judgment was rendered and the defendant sued out this writ of error.

The Revised Statutes of Missouri of 1909 contained the following provision:

'Sec. 7828. Belting, etc., to be Guarded.-- The belting, shafting, machines, machinery, gearing and drums, in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments. (R. S. 1899, § 6433, amended, Laws 1909, p. 502.)'

The amendment of 1909 inserted the words 'machines' and 'machinery.'

The answer contains the statement that:

'Defendant further admits the allegation in the plaintiff's petition that the danger and peril connected with plaintiff's work was an obvious danger and peril.'

The defendant called as a witness the assistant general superintendent of the Western district of the Atlas Portland Cement Company who testified: 'It is a dangerous shaft.' In view of this admission and testimony, corroborated as it is by all the evidence and contradicted by nothing, we have no hesitancy in reaching the conclusion that the machine in question was 'dangerous to persons employed therein or thereabout.'

When the question first came before this court, it held that, notwithstanding the Missouri statute referred to, the defenses of assumption of risk and contributory negligence were both available to the defendant in cases brought under that section. St. Louis Cordage Co. v. Miller, 61 C.C.A. 477, 126 F. 495, 63 L.R.A. 551; Glenmont Lumber Co. v. Roy, 61 C.C.A. 506, 126 F. 524; Federal Lead Co. v. Swyers, 88 C.C.A. 547, 161 F. 687; Mengel Box Co. v. Dulin, 98 C.C.A. 401, 174 F. 647. And this court held to the same effect as to a similar Colorado statute. Denver & R.G.R. Co. v. Norgate, 72 C.C.A. 365, 141 F. 247, 6 L.R.A.(N.S.) 981, 5 Ann.Cas. 448. And the same under a Wyoming statute. Maki v. Union Pacific Coal Co., 109 C.C.A. 221, 187 F. 389; Owl Creek Coal Co. v. Goleb, 127 C.C.A. 27, 210 F. 209.

That was the best judgment of this court after the most careful consideration, but there was a great conflict in the authorities, state and federal, on this question. See Welsh v. Barber Asphalt Paving Co., 93 C.C.A. 101, 167 F. 465, and Narramore v. Cleveland, C., C. & St. L. Ry. Co., 37 C.C.A. 499, 96 F. 298, 48 L.R.A. 68. This is not claimed to be an exhaustive review of all the cases bearing on this subject, but suffices to show the court's attitude at first upon the question.

In Columbia Box Co. v. Saucier, 129 C.C.A. 659, 213 F. 310, this court held that the Supreme Court of Missouri had so construed this particular statute that assumption of risk was not a defense, citing Durant v. Mining Co., 97 Mo. 62, 10 S.W. 484, Lore v. American Manufacturing Co., 160 Mo. 622, 61 S.W. 678, Butz v. Construction Co., 199 Mo. 286, 97 S.W. 897, Huss v. Heydt Bakery Co., 210 Mo. 44, 108 S.W. 63, and Simpson v. Witte Iron Works, 249 Mo. 376, 155 S.W. 810, and numerous decisions of the various Courts of Appeals of Missouri. This court held that the decisions of the Supreme Court of Missouri were binding upon this court.

In a quite able and ingenious argument the plaintiff in error here cites Patrum v. St. Louis & S.F.R. Co., 259 Mo. 109, 168 S.W. 622, as holding that a portion of the assumption of risk has become a form of contributory negligence. In view of the fact that contributory negligence always arises in tort, while assumption of risk always arises on contract, we cannot quite understand how this could be true. We can understand how the same evidence can make out a defense arising in tort and one on contract, but not how a defense arising on contract and abolished by law can become one arising in tort; but the Patrum Case was not under this or any similar statute, but was a common-law action against the railroad for negligence. In the statement of facts as prepared by the court it is said:

'The bone of contention in the case is as to whether the trainmen, the fellow servants of deceased, used ordinary care in making the coupling in which they were engaged when deceased lost his life.'

That case, therefore, really involved nothing with reference to assumption of risk or contributory negligence. In that case the court quoted with approval from the Iowa Supreme Court the following:

'The term 'assumption of risk' has come to be used in a twofold sense. It is often said that an employe assumes the ordinary risk that is incident to his employment. This form of assumption of risk is often pleaded by defendants in personal injury cases, although it is quite unnecessary to do so. Assumption of risk in its true sense has reference to those risks arising out of the negligence of the master when such negligence is known to the employe, and the danger therefrom appreciated by him. In the first form herein indicated, a specific pleading of assumption of risk of the ordinary dangers incident to an employment is a mere amplification of the general denial, and adds nothing to it in the legal sense. In the second form herein indicated, it is an affirmative defense, and must be specifically pleaded as such.'

The court said in that case:

'Under the doctrine found in...