Brashears v. United Iron Works Company
| Decision Date | 10 June 1913 |
| Citation | 157 S.W. 360,171 Mo.App. 507 |
| Parties | ROBERT D. BRASHEARS, Respondent, v. UNITED IRON WORKS COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.
Judgment affirmed.
Mann Johnson & Todd for appellant.
(1) The court erred in refusing to give defendant's requested instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's evidence in chief and renewed at the close of all the evidence in the case because plaintiff did not prove that any notice had been given to defendant by the State factory inspector or assistant inspector to put guards over the cogwheels on the rattler, which notice is required by Sec. 7842, R. S. 1909, and without which notice Sec. 7828, R. S. 1909, is not operative nor in effect. Therefore, plaintiff's cause of action being based on alleged violation of the provisions of Sec. 7828, plaintiff failed to make out his case and a demurrer should have been given for that reason. Williams v. Railroad, 136 S.W. 304. (2) In the absence of statute, the master at common law is not bound to fence or guard his dangerous machinery and no action can be predicated at common law for failure to fence or guard dangerous machinery. Lore v. Mfg. Co., 160 Mo. 622; Bair v. Heibel, 103 Mo.App. 632; Czernicke v. Ehrlich, 212 Mo. 394; Cole v. Lead Co., 130 Mo.App. 253. (3) The master is not an insurer of the safety of his servant, but is only required to use ordinary care to furnish the servant with reasonably safe machinery and place to work. In this case there was no obligation to put a guard over the machinery. The machine was in good order, there being no defect about it, and all of the evidence shows that the appliance was not unsuitable but was improperly handled by plaintiff. Winkler v. Basket & Box Co., 137 Mo. 394; George v. St. Louis Mfg. Co., 159 Mo. 333; Holmes v. Bradenbaugh, 172 Mo. 503. (4) The master has the right under the law to conduct his business in his own way, and there being no inherent defect in that way or manner, the servant knowing that way, cannot recover. In other words, he assumes the risk of any accident resulting from a regular way of doing business. Coin v. Lounge Co., 222 Mo. 488; Cole v. Jones, 141 S.W. 689; Morgan v. Mining Co., 141 S.W. 735; Beckman v. Brewing Assn., 98 Mo.App. 555; Herrington v. Railroad, 104 Mo.App. 633. (5) Plaintiff got his hand caught in the cogwheels as result of his own carelessness and negligence. Czernicke v. Ehrlich, 212 Mo. 386; Doerr v. Brewing Assn., 176 Mo. 547; Smith v. Box Co., 193 Mo. 715; Sanborne v. Railroad, 10 P. 860-863; Stoll v. Hoopes, 14 A. 658; Engine Works v. Randall, 50 Am. Rep. 798; Gorman v. Brick Mfg. Co., 68 N.W. 674; Beck v. Firnenich Mfg. Co., 48 N.W. 81; Anderson v. Lumber Co., 69 N.W. 630; Buttle v. Box Co., 56 N.E. 583; Sugar Co. v. Preuner, 75 N.W. 1097; Sakol v. Rickel, 71 N.W. 833; Schultz v. Lumber Co., 65 N.W. 498; Deering v. Canfield & W. Co., 85 N.W. 874; Lewis v. Simpson, 29 P. 207. (6) Plaintiff did not allege nor prove that notice by the State factory inspector, or assistant inspector, had been given to defendant to put guards over the cogwheels on the rattler, which notice was required by Sec. 7842, R. S. 1909, and without which notice section 7828 is not operative nor in effect. Therefore, plaintiff's instruction number one was erroneous because it omitted all reference to any such notice and in the condition of the pleadings and proof should not have been given at all. Williams v. Railroad, 135 S.W. 308, et seq.
Patterson & Patterson for respondent.
(1) The court did not err in refusing to sustain defendant's demurrer to the evidence "for the reason that the plaintiff did not prove that the State factory inspector or assistant inspector notified defendant to safeguard the cogwheels on the rattler." First: Because no such point was made in the trial court by the pleadings of defendant, by the evidence, by the demurrer to the evidence or by the motion for a new trial or in any other way. Second: Because the point is without merit any way. (2) The defendant is bound by the theory adopted in the trial court. King v. Railroad, 130 Mo.App. 368; Hof v. Transit Co., 213 Mo. 470; Bray v. Seligman, 75 Mo. 40. (3) An error common to both parties furnishes no ground for a reversal. Bielman v. Railroad, 50 Mo.App. 151; Waters v. School Dist., 59 Mo.App. 580. (4) A party cannot on appeal or writ of error, complain of an error committed by the trial court which he himself invited or ratified. Gregory v. Sithington, 54 Mo.App. 60; Waller v. Railroad, 59 Mo.App. 410; Harper v. Morse, 114 Mo. 31; Johnson-Brinkman Co. v. Bank, 116 Mo. 558; Drennan v. Dalncourt, 56 Mo.App. 128. (5) A point not presented in the trial court, and not passed on by that court, will not be considered in the appellate court. Burdoni v. Trenton, 116 Mo. 358; Rogers v. Gage, 59 Mo.App. 107. (6) In a statutory action for damages, if there be a failure of proof on the part of plaintiff, the defendant must in his motion for new trial point out the unproven facts, which render the verdict invalid. Lynch v. Railroad, 208 Mo. 1, 42, 44; Fox v. Young, 22 Mo.App. 386. (7) A cause must be disposed of on appeal upon the same theory as that assumed at the trial by the parties. Williams v. Lobban, 206 Mo. 407; St. Louis v. Wright & Co., 210 Mo. 502; Mitchell v. United Railways Co., 125 Mo.App. 11; Bank v. Zook, 133 Mo.App. 603; Brick Co. v. Railroad, 213 Mo. 727. (8) Parties cannot lie by and, trying a case presumingly or apparently on one theory, spring a vital point and endeavor to introduce for the first time in this court an entirely new line of defense. Justice does not lie that way. Nicket v. Railroad, 135 Mo.App. 670, 671. (9) Sec. 7842 was originally enacted in 1891. Every case decided by the appellate courts, and they are many construing this act from Lore v. Mfg. Co., 160 Mo. 608, to Lohmeyer v. Cordage Co., 214 Mo. 685, have held by necessary implication at least that the notice provided for in section 7842 did not in any way affect the defendant's civil liability under section 7828, and there is no case to the contrary. (10) The mere fact that a factory has been inspected is of no significance whatever unless it is proposed to further show in some way some fact of material importance. McGinnis v. Printing Co., 122 Mo.App. 228; Parker v. Holland, 115 Mo.App. 681. (11) In Missouri an employee does not assume risks incident to the negligence of his employer (Curtis v. McNair, 173 Mo. 270), and for a stronger reason does not assume the risk of working about devices which the employer has not safeguarded as required by statute, even though the employee is aware of their condition. Brannock v. Railroad, 147 Mo.App. 316; McGinnis v. Printing Co., 122 Mo.App. 227. (12) It is only in a case concerning which reasonable men can not fairly differ that the court may declare a plaintiff guilty of contributory negligence as a matter of law. Coombs v. Kirksville, 134 Mo.App. 645, 649; Nagel v. Railroad, 75 Mo. 653; Hulin v. Railroad, 92 Mo. 440.
OPINION
Plaintiff sued the defendant in the circuit court of Greene county to recover the sum of $ 5000 on account of personal injuries received in the plant of the defendant in Springfield, by reason of getting his left hand caught in an unguarded cogwheel of certain machinery called a "rattler," then being operated by the defendant in its said plant, while placing oil in an oil cup in close proximity to the said cogwheel, and recovered judgment to the amount of $ 1602.50. The plaintiff based his petition upon section 7828, Revised Statutes 1909. At the conclusion of the testimony the issues were submitted to the jury under that section of the statute, and also on the question of contributory negligence on the part of the plaintiff.
The case was tried in the circuit court on July 14, 1911. Appellant filed its brief in this court on March 4, 1912, assigning as error the refusal of defendant's requested instruction in the nature of a demurrer to the evidence offered at the close of all of the testimony because, as it is said, the plaintiff did not prove that any notice had been given to the defendant by the State factory inspector, or his assistant, to put guards over the cogwheels, which notice, it is contended, is essential to put into operation said section 7828. The only other assignment of error contained in appellant's brief is on the giving of plaintiff's instruction numbered one, which alleged error aims at the same point.
Appellant, under the points and authorities in its brief, insists that the accident complained of is the result of the contributory negligence of the plaintiff, but as that is, in this case, a question for the jury upon which they were required to and did pass, under full instructions on the question in behalf of the defendant, it is unnecessary for us to discuss the weight of the evidence.
I am of the opinion that it is not necessary for us to decide whether or not the statute changes the ordinary rule of contributory negligence, because this is a case, I think, in which a court should not hold as a matter of law that the plaintiff was guilty of contributory negligence, irrespective of any statutory provisions providing for the protection of the machinery. The defendant alleges the contributory negligence on the part of plaintiff to be that "he had upon his left hand a pad consisting of an old piece of belting with a slit cut in one end of the same and slipped over his hand and hanging from his left wrist, and that while plaintiff was oiling said rattler he carelessly, negligently and...
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