Bollman v. Kark Rendering Plant

Citation418 S.W.2d 39
Decision Date10 July 1967
Docket NumberNo. 1,No. 52216,52216,1
PartiesWalter William BOLLMAN, Jr., by His Next Friend, Betty Lou Sanderson, Respondent, v. KARK RENDERING PLANT, a Missouri Corporation, Appellant
CourtUnited States State Supreme Court of Missouri

Downs & Pierce, St. Joseph, for respondent.

J. F. Allebach, Albany, Pickett, Andereck & Hauck, by Eugene E. Andereck, Trenton, for appellant.

HOUSER, Commissioner.

Walter William Bollman, Jr., a minor, filed suit pro ami against Kark Rendering Plant for personal injuries allegedly sustained as a result of negligent failure to install guards to cover the working parts of a winch on defendant's premises or to warn plaintiff of the known dangerous condition. A trial jury rendered a verdit for plaintiff for $37,500. Kark has appealed from the judgment netered upon the verdict.

The petition charged that plaintiff was on defendant's premises assisting his father in unloading dead animals from his father's truck into the plant; that plaintiff was using a winch installed by defendant for the purpose of such unloading and that while so engaged plaintiff's right hand became caught in the working gears and apparatus of the winch, which was unsafe as above specified. Kark's answer denied that it owed any duty to plaintiff and alleged that plaintiff was on the premises as a volunteer for his own purposes only and not for the benefit, pleasure or convenience of defendant; that in any event plaintiff's injuries were caused by plaintiff in that the winch, gears, etc. were plainly visible and obvious and as well known to plaintiff as to defendant.

We state the evidence from the standpoint most favorable to the prevailing party. Plaintiff, 13 years, 10 months of age and weighing 82 pounds at the time of the casualty, was a student at a special education school for children who learn more slowly than most children. He was doing school work at the 3rd or 4th grade level. He showed more ability in manual skills than in academic skills. He lived with his mother, who was divorced from his father, Walter William Bollman, Sr. We will refer to the father as Senior and the son as Junior. Senior's business was buying, collecting and selling dead animals and offal to rendering plants. He owned a truck which he used for this purpose. He had Kark's permission to make deliveries to the plant and the right to use the winch at any time of the day or night, whether or not Kark employees were present. If no Kark employees were on hand when he arrived he would open the door, attach a cable to a carcass, turn on the electric motor which operated the winch, engage the gears and wind up the cable on a revolving drum. By this method the carcasses were dragged from the bed of the truck into the plant and onto the 30 40 feet plant floor. For 2 or 3 years prior to the casualty Senior had been delivering dead stock to Kark's plant once or twice a day and using the winch in question. Sometimes when plant employees were there and not otherwise occupied they would help Senior unload. If they were busy doing something else, or if Senior arrived when Kark employees were off duty, Senior would unload by himself, without assistance. Senior performed this operation alone about half the time. When Kark employees assisted it was done as a courtesy, to save him time. Senior was an independent contractor, not an employee of Kark. He was paid by the hundredweight. The delivery of dead animals to be rendered at the plant was beneficial and to the economic advantage of Kark, indeed was essential to the operation of the business.

Junior had assisted Senior in unloading dead animals at the plant 15 or 20 times. In the manager's presence Junior had helped his father 'take boxes of bones and stuff' and put them on the tailgate of the truck, from which Senior would taken them into the plant. Every once in a while Junior would take a box, if it was small, over by the switch near the south wall. Junior had 'seen the grown men and fellows around there working that winch,' and had seen Ralph Stamper's 15-year-old son on the rendering plant floor, helping Mr. Stamper. Kark's manager had seen Junior at the plant a couple of dozen times, always accompanied by his father. He had seen Junior 'right inside the door,' on the rendering floor. Although the manager said that he had never seen Junior doing any work in the plant, he knew that in that county boys help their fathers with their chores. Kark's manager had talked to Junior but had never 'run (Junior) out' or told him to stay away from the plant. Junior was not paid a 'salary.' Senior did not 'hire' Junior as a worker, in the conventional sense. his father 'paid' Junior by giving him money 'to buy models and stuff' (his hobby was little model cars, of which he had about forty) but the father also gave his son gifts at times when he did not ride on the truck.

Junior was injured on Washington's birthday, 1965. Because of the holiday Junior was not in school. He was visiting his father that day. When Junior told Senior that he was supposed to return to his mother's home by 3 p.m. his father called his mother and asked her if the boy could go with him out to the plant. She agreed. That day Junior 'helped' Senior go around and pick up dead animals. After they had accumulated a load of dead stock and offal Senior drove the truck to the rendering plant, arriving after dark. Kark's employees had left the plant. After weighing the loaded truck on the scales Senior went into the basement, turned on the lights, went upstairs, opened the door at the loading dock and backed the truck to the dock. Junior had remained in the truck. As Senior pulled down the tailgate Junior asked if he could run the winch, and Senior said 'Okay.' Junior had never previously operated the winch, but he knew how by having observed grown-ups operate it. There was also a winch on Senior's truck which Junior knew how to operate.

The winch at the plant was located at the east side of the room. It was operated by an electric motor. The electric switch which turned the motor on and off was located on the south wall of the room, 30 feet from the winch. The switch was also 30 feet distant from the unloading dock on the west side of the room. The winch mechanism consisted of an electric motor, a gear box, a model A transmission with a gear shift (no clutch) and a drum. When the motor was turned on a chain drive started to revolve. The main gear was engaged by pushing the idling gear by hand. The transmission gear shift lever was then moved to engage the transmission. The main gear turned the idling gear, which turned the drum gear, which caused the drum to revolve. The revolving drum would up the winch cable, which was attached to the carcasses which in turn were pulled from the truck bed onto the plant floor. The transmission gear shift was then disengaged, the gears stopped, and the idling gear slipped out (by hand), thus letting the drum turn freely. The cable was then pulled back to hook onto the next carcass, and the operation would be repeated. It the gear shift lever was moved to engage the transmission without first setting the idling gear the main gear would turn but the drum gear and drum would not turn. The gears could be stopped by disengaging the gear shift, without first turning off the electric switch.

There were no guards or warning signs on the machinery. Neither Senior nor Junior had been warned by Kark's manager about the machinery. There were no instructions on how to operate the winch. An expert testified that the winch did not meet the state's minimum safety standards because it had no cover over the gears to guard them. It was also unsafe because there was no switch immediately in the area of the machinery to stop it in case of emergency. An operator caught in the machinery could not turn off the electric motor because of the position of the switch, 30 feet away. The winch could have been properly guarded so as to have made it impossible for an operator to injure himself, at a cost of $25.

When Senior gave Junior his 'Okay' Junior went across the room to the winch. Senior turned on the switch. The electric motor started. Junior knew how to work the winch from having watched the grown men operate it, and knew that the winch was dangerous. The plant was lighted. Junior's eyesight was good. He had no physical defects. He said that he was not confused. The motor started the chain to run but did not activate the gears. Instead of first setting the idling gear Junior shifted the transmission gear shift lever. This started the main gear moving, but did not start the gear on the drum or the drum to move. Junior saw that the idling gear was not engaged. Without disengaging the transmission gear he reached his gloved right hand down and pushed the idling gear which was not moving, against the main gear which was moving. Junior had seen Kark employees move the idling gear back and forth with their right hands. He testified that he ran the winch just as he had seen the Kark people doing it. When he pushed the idling gear over into gear with his hand he knew that the gears were moving and dangerous; knew and was aware that it was possible to get caught in them and get hurt. He testified that his hand 'must have been caught, somehow' and he was pulled into the machinery. After his hand was caught in the gears he was unable to reach the gearshift lever to stop the moving gears. As a result his right hand and lower arm had to be amputated between wrist and elbow and he lost skin and underlying tissue on his right hip and thigh.

The first question is that of the status of plaintiff while at and on Kark's premises and what legal duty Kark owed him. Kark claims that having been guilty of no active or affirmative negligence it owed plaintiff no duty of ordinary care because plaintiff was a trespasser, volunteer or mere...

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