Bright v. St. Louis Vitrified & Fire Brick Co.

• Decision Date: 05 March 1918
• Docket Number: No. 14778.,14778.
• Citation: 201 S.W. 641
• Court: Missouri Court of Appeals
• Parties: BRIGHT v. ST. LOUIS VITRIFIED & FIRE BRICK CO.

201 S.W. 641

BRIGHT v. ST. LOUIS VITRIFIED & FIRE BRICK CO.

No. 14778.

St. Louis Court of Appeals. Missouri.

March 5, 1918.

On Motion for Rehearing, March 20, 1918.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

"Not to be officially published."

Action by Charles Bright against the St. Louis Vitrified & Fire Brick Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A. E. L. Gardner, of Clayton, and Leahy, Saunders & Barth, of St. Louis, for appellant. Fred W. Imsiepen and A. J. Haverstick, both of St. Louis, for respondent.

ALLEN, J.

This is an action to recover for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $7,000, from which the defendant prosecutes the appeal.

At the time of plaintiff's injury, to wit, June 19, 1913, defendant was engaged in the business of mining clay and manufacturing brick, at a plant operated by it in St. Louis county. The evidence shows that the plant extended over approximately ten acres of land, and included a number of separate structures such as the "brick factory," "kilns," sheds, boiler house, etc., and a building which contained the machine shop, the carpenter shop, and the blacksmith shop. From the clay mine, situated east of the brick factory, the clay was taken over tracks to a clay dump, from which it entered the clay sheds situated immediately east of the large factory building mentioned. From the clay shed the clay was fed into three large crushers, or "mills," located at the extreme eastern end of the factory building, where it was crushed and ground. From the crushers the ground clay was conveyed by elevators to an upper story of the factory building where it was screened. The tailing, or coarser portions of the clay, which did not pass through these screens, was conveyed by "down spouts" back to the crushers to be reground.

Plaintiff was injured at one of these clay crushers, referred to as "mill No. 1." Plaintiff worked in the machine shop, a part of the repair department, under his brother who had charge of this shop; but it was his duty, when summoned, to go to any portion of the plant where repairs were needed, or when something became out of working order. The entire plant was under the supervision of one Stapleton, defendant's superintendent. The crusher at which plaintiff was injured, or "mill No. 1," was in charge of one Fitzgerald. This crusher was a large heavy machine, the lower part of which extended below the flooring thereabout, into a pit. It contained large heavy wheels which revolved in vertical planes above a heavy horizontal base which also had a circular motion. At the top of the crusher was a large horizontal cogwheel, about six feet in diameter, referred to in the testimony as the "master cogwheel," which was driven by a relatively small cogwheel, termed the "pinion wheel," which was at the end of the driving shaft which extended across the top to the crusher and by which it was operated. The crusher was controlled, i. e., put in motion or stopped, by means of a long lever, situated at the side of the machine. It was Fitzgerald's duty to start and stop the crusher, he being in exclusive charge thereof; he also shoveled clay into the crusher.

One of the down spouts mentioned above extended down the wall of the building to this crusher; the lower part of the crusher extending to, or nearly to, the wall. This down spout would sometimes become clogged, and upon such occasions either Fitzgerald or some one else would send for some one in the repair department to open it. On the day of plaintiff's injury one Riley, who worked on the third floor of the factory building, discovered that this particular down spout had become clogged. According to his testimony, he thereupon told Fitzgerald to "stop his mill," and started to go to the machine shop to get one of the "mechanics." While on the way to the machine shop he met plaintiff, who was then taking an oil can to the engine room, and told him "that the down spout on No. 1 mill had choked up and was out of working order, and would have to be looked after." It appears that when plaintiff arrived at the crusher Fitzgerald was not there, but that he returned in a few minutes, and told plaintiff that he and Riley were unable to get the down spout open, and that plaintiff would "have to unchoke the pipe." Plaintiff testified that he got upon the crusher, and, standing upon the master cogwheel, began to work at the clogged down spout, having first cautioned Fitzgerald to stand at the lever and see that the machine was not put in motion, and having received Fitzgerald's assurance that this would be done. In working at the down spout plaintiff's back was turned to Fitzgerald. It appears that he had been engaged in the task but a few minutes when the crusher suddenly started in motion, by reason whereof his leg was caught between the master cogwheel and the pinion wheel and crushed, necessitating the amputation thereof. Fitzgerald did not testify, but from the testimony of Riley it appears that while plaintiff was thus standing upon the master cogwheel, working at the choked down spout, with his back turned to Fitzgerald, the latter left his post and entered the building for some purpose; and that when he returned to the crusher shortly thereafter he at once operated the lever causing the machine to be put in motion.

It appears that the clogging of this down spout was by no means an unusual occurrence, but one which happened quite frequently. It is said that "sometimes it would get filled up with clay Once a day, and sometimes twice a week," making it necessary to call one of the three or four men connected with the repair department. Plaintiff, who had been in defendant's employ for many years and who had worked in the repair department for two years or longer, had previously opened the; spout when it became clogged, upon various occasions, in the same manner in which he was performing the task when injured. Defendant had provided no other place upon which a workman could stand when engaged in this work, and it was performed from time to time by plaintiff or one of his coworkers in the repair department by standing upon the master cogwheel, as did plaintiff upon this occasion. That defendant was aware of this, and intended that the work be thus performed, when required to be done, is apparent from the evidence adduced touching the matter. There is considerable testimony in the record going to show that a small platform could readily have been erected at the wall near this crusher, which would have afforded a safe and convenient place upon which to stand while doing this work thus periodically required to be done. And there is testimony tending to show that defendant's superintendent had previously spoken of erecting such a platform for the purpose mentioned, but this was not done. Upon cross-examination of plaintiff and his witnesses, defendant sought to make it appear that plaintiff could have placed a ladder...