Bagby v. Culberson

Decision Date05 May 1925
Docket NumberNo. 18672.,18672.
Citation273 S.W. 209
PartiesBAGBY v. CULBERSON.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Action by H. T. Bagby against L. H. Culberson. From a judgment for plaintiff, defendant appeals. Affirmed.

Spradling & Dalton, of Cape Girardeau, and Farris & Munger, of Bloomfield, for appellant.

W. A. Welker and Jerry Mulloy, both of Poplar Bluff, and T. D. Hines, of Jackson, for respondent.

SUTTON, C.

This is an action for personal injuries sustained by plaintiff, while engaged in work as an employé of defendant at his blacksmith and machine shop in the city of Dexter, Mo. The cause was tried to a jury. There was a verdict for plaintiff in the sum of $2,250, and judgment was given accordingly. Defendant appeals.

The defendant maintained and operated in his shop an emery wheel at which the plaintiff was required to work. The wheel was operated by a rapidly revolving electric motor to which the wheel was connected and geared by means of belts, shafting, and pulleys. While the plaintiff was engaged in grinding a plow point on this wheel in the regular course of his employment, the wheel burst or exploded, and a fragment thereof struck the plaintiff's arm just above the elbow and inflicted a serious and permanent injury.

The petition charges that the defendant negligently connected and geared the emery wheel by means of belts, shafting, and pulleys to a powerful and rapidly revolving electric motor, and negligently operated said emery wheel at an excessive and dangerous rate of speed, and that the plaintiff's injuries directly resulted from such negligence. The answer denies generally the allegations of the petition, charges contributory negligence on the part of the plaintiff, in that plaintiff, while operating the emery wheel in question, thrust into and against said wheel the plow point he was grinding, and that he applied said plow point to said wheel at an unusual, unnecessary, and negligent angle, and with unusual, unnecessary, and great force, and also charges assumption of the risk.

The evidence for plaintiff tends to show that the speed of the electric motor shaft, which operated the emery wheel in question, was 1,750 revolutions per minute, and that this speed was indicated on the name plate of the motor; that the emery wheel, which was 14 inches in diameter, was being operated at 2,434.74 revolutions per minute, giving it a rim speed of 9,738.98 feet per minute; that the speed of the emery wheel was determined by mathematical calculation from the known speed of the motor shaft, the diameter of the emery wheel, and the dimensions of the various pulleys by means of which the motor shaft was connected and geared to the shaft of the emery wheel; that the maximum speed recommended by the manufacturer of the wheel as a safe speed was 1,640 revolutions per minute, giving a rim speed of 6,500 feet per minute; that emery wheels of the same make and character of the wheel in question were in general use in blacksmith and machine shops and manufacturing plants, and that it was customary to operate them within the speed recommended by the manufacturer ; that it was generally regarded as dangerous to operate them in excess of the recommended speed; that it was the general custom to operate such wheels at a rim speed not exceeding 6,500 feet per minute; that the manufacturer when sending such wheels to customers attached to the wheels tags showing the speed recommended by the manufacturer, and also furnished tables showing the recommended speed of the different sizes of wheels; that the recommended speed shown by these tags and tables for wheels of the size of the one which exploded and injured plaintiff was 1,640 revolutions per minute; that the wheel which exploded and injured plaintiff was installed in defendant's shop about three or four days before the plaintiff's injury; that when the wheel was received by defendant from the manufacturer it carried a tag showing the maximum speed recommended by the manufacturer as 1,640 revolutions per minute; that plaintiff had been in defendant's employ about three months previous to his injury; that during this period he had, as occasion required, worked at emery wheels of the same character and type, and geared to and driven by the same motor, as the wheel he was working at when he was injured; that he was not an emery wheel expert, but was an experienced blacksmith, and as such had worked at emery wheels for a number of years. He testified that he did not know the wheel was being operated at an excessive rate of speed at the time he was injured, and that if he had known this, he would not have worked at the wheel; that he thought the wheel was running at the usual and customary speed; that he had no idea of the rate of speed the emery wheel was running; that he thought it was running about 1,400 to 1,600 revolutions per minute. The expert testimony shows that such a wheel,

when operated at a greater rim speed than 6,500 feet per minute, was likely to disintegrate, or fly to pieces, and that it was dangerous to so operate it; that to operate such a wheel at a rim speed as high as 9,000 feet per minute was exceedingly dangerous; that the centrifugal force, or tendency to disintegrate, of a revolving wheel, varies in proportion to the square of its rim velocity; that this is an absolute and invariable physical law.

The evidence for the defendant shows that, at the time of plaintiff's injury, the emery wheel in question was being operated at a rim speed of 7,913.2 feet per minute; that the motor by which the wheel was being operated was installed in defendant's shop 20 years before the accident in question; that during that period a large number of emery wheels of the same make and type, as the wheel which exploded and injured plaintiff, had beep operated in defendant's shop with this motor; that there had never been any change in the speed of the motor or in the size of the pulleys which operated the emery wheels, but that the motor and emery wheels had been operated at the same rate of speed, from the time the motor was installed up to and including the occasion and date of the explosion which caused the plaintiff's injury; that previous to this explosion no emery wheel operated by this motor had ever exploded.

Defendant assigns reversible error upon the giving of plaintiff's instruction No. 1, as follows:

"The court instructs the jury that if you believe and find from the evidence in this case that the plaintiff was in the employ of the defendant as a blacksmith, and that, while in the discharge of his duty as such blacksmith in defendant's shop, he was grinding a plow point upon defendant's emery wheel, and that he was exercising due care for his own safety, that is, such care as an ordinarily prudent person would use under like or similar circumstances, and if you further find from the evidence that said emery wheel burst, and that a large piece or fragment thereof struck the plaintiff's left arm with such force and violence that his arm was cut, bruised, torn and lacerated, and if you further find from the evidence that said emery wheel burst because it was revolving at too high a speed, and that the defendant knew, or by the exercise of ordinary care could have known, that said emery wheel was revolving too fast and as a result thereof was likely to burst, then your verdict must be...

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7 cases
  • Connole v. East St. Louis & S. Ry. Co.
    • United States
    • Missouri Supreme Court
    • 11 d4 Março d4 1937
    ... ... (a) It is perfectly ... proper to designate as negligence facts which, if found, are ... as a matter of law negligence. Bagby v. Culbertson, ... 273 S.W. 209; Oglesby v. Ry. Co., 1 S.W.2d 172; ... State ex rel. v. Ellison, 223 S.W. 674. (b) It is ... perfectly proper ... ...
  • Keaton v. Good
    • United States
    • Missouri Court of Appeals
    • 12 d4 Outubro d4 1961
    ...v. Winnwood Amusement Co., supra, 59 S.W.2d 693, 697. As a matter of fact, such submission has been said to be improper. Bagby v. Culberson, Mo.App., 273 S.W. 209(2). Now we return to the hypothesization which carried the plaintiff's (a) The mare was entered in a horse show race, starting a......
  • Butler v. City of University City
    • United States
    • Missouri Court of Appeals
    • 5 d2 Janeiro d2 1943
    ... ... State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Bagbyllison, 272 Mo. 571, 199 S.W. 984; Bagby v. Culberson ... ...
  • Levine v. Hochman
    • United States
    • Missouri Court of Appeals
    • 2 d2 Junho d2 1925
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