Chapman v. Bimel-Ashcroft Mfg. Co.

• Decision Date: 10 June 1924
• Docket Number: No. 24068.,24068.
• Parties: CHAPMAN et al. v. BIMEL-ASHCROFT MFG. CO.
• Court: Missouri Supreme Court

263 S.W. 993

CHAPMAN et al. v. BIMEL-ASHCROFT MFG. CO.

No. 24068.

Supreme Court of Missouri, Division No. 1,

June 10, 1924.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by John D. Chapman and another, minors, by W. A. Dark, their curator, against the Bimel-Ashcroft Manufacturing Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Oliver & Oliver, of Cape Girardeau, for appellant.

John P. Griffin and F. P. Sullivan, both of St. Louis, for respondents.

SMALL, C.

Plaintiffs are the minor children of Samuel J. Chapman, deceased, and the suit is brought by their curator, W. A. Dark, for damages against the defendant for negligently causing the death of their father on July 20, 1921. Plaintiffs' father was operating a bull wheel and drum for the purpose of drawing logs into defendant's sawmill, and while attempting to replace a belt which had come off one of the pulleys his left hand was caught by the belt, wrapping itself around it and holding it to the revolving shaft to which the pulley was affixed, with the result that his hand and part of his arm were torn from his body, from the effects of which he died that night or the next morning.

There were seven specifications of negligence in the petition, but, as the case was submitted to the jury on but two, the fourth and fifth, it is sufficient to refer to them. The fourth was based on negligence in failing to guard dangerous belting, shafting, and machinery, as required by the statute, and was as follows:

"That defendant failed and neglected to safely and securely guard said pulley, shafting, and belting when it was possible to guard said pulley, shafting and belting without interfering with its operation."

The fifth was as follows:

"Fifth. In that the defendant failed and neglected to furnish the deceased a reasonably safe place to work, in that the said pulley was fastened on said shaft by means of wooden bushing, which bushing extended out from the west side of said pulley toward the end of said shaft from one inch to two inches, in an uneven and jagged position, which was liable to catch the deceased's arm, and which the defendant knew, or could have known by the exercise of ordinary care, was not reasonably safe."

The answer was a general denial, contributory negligence, and assumption of risk on the part of the deceased, and that there was a defect of parties "in this, that plaintiff, W. A. Dark, is and for a long time has been a nonresident of the state of Missouri, and has no right to maintain this suit as curator; that he made his settlement four years ago, and has since moved out of the state."

The reply admitted that deceased was wearing gloves when his hand caught, and that said shaft was revolving, but put the other allegations of the answer in issue. There was judgment for plaintiffs for $8,000, and defendant appealed to this court.

The bull wheel or drum in question was located in a shed adjoining defendant's main building, and power was transmitted to it by a shaft from the main building projecting into this shed some five or six feet, about seven or eight feet above the floor, and very near the roof of the shed. There were two pulleys on this shaft, one, the larger, close to the wall of the main building, and the other, somewhat smaller, about six inches from the end of the shaft, leaving that much of the shaft projecting beyond the pulley. The larger pulley was used to run the drum when drawing the logs up to the sawmill and the smaller to run it backwards and carry the cable or rope back to where the logs were. The bushing of the smaller pulley was uneven and protruded out from the pulley on the shaft an inch or more. The shaft to which the drum or bull wheel itself was affixed was several feet below the shaft which came out of the main building, and rested upon and was supported by an open framework of 6x8 timbers, which in turn rested on a foundation two and one half or three feet high above the floor of the shed. The belt which came off and which plaintiffs' father was trying to replace when injured ran on the smaller pulley near the roof, and was some seven and one half feet from the floor. In order to put it back it was necessary for him to get up on the foundation or sill of this open framework, and reach up through it to where the pulley with its projecting shaft and bushing was. According to all the evidence there was no guard of any kind around this shafting, pulleys, belts, and machinery except the open framework which afforded no protection to persons attempting to replace the belt on said pulley. Plaintiffs' evidence tended to show that the deceased attempted to replace the belt which had come off the pulley without ordering it slowed down, and when it was revolving at the regular speed of some 300 or 400 revolutions per minute, and that the belt wound around the projecting end of the shaft and in so doing caught the decedent's left hand and severed it and a portion of his arm from his body. The only person who saw the accident was plaintiffs' witness Dilameter. He worked for the defendant as engineer and fireman. He says he did not see Chapman's hand taker( off, but from where he was he saw Chapman from the waist down; that the belt was off, and Chapman, who was in charge of the machinery, got up on the 6x8 framework and reached up with his left hand as if to catch hold of something, and then reached over with his right hand to throw the belt on the pulley. He made a second try, and witness then saw Chapman raise himself up some eight or ten inches and then turn around and get down. He asked Chapman whether he lost some fingers, and Chapman said, "Yes, part of my arm, too"; that Chapman had to get on this sill or part of the framework to put the belt on the pulley. He saw Chapman's arm sticking out there, and the belt wrapped around part of it. His arm was torn off three or four inches above the wrist. The machinery was running full speed. The belt came off several times before that. He had seen Chapman and Littleton put it on together; never saw Chapman do it alone; had to get upon the sill to put it on; could not reach from the ground. As a general thing the machinery was always running when they put it on.

Cross-examination: No signal was given to stop or slow down; there was a rope about five or six steps from him in the main building to give signal to slow down, but he gave no such signal. If a signal had been given, the engine would have stopped and slowed down. A man runs, a chance of getting hurt putting a belt on any time, and the faster it runs the greater the risk.

There was abundant evidence on behalf of plaintiffs and none to the contrary on the part of defendant that this pulley, belting and projecting shaft could have been easily so guarded without interfering with their operation as to prevent injury to persons attempting to replace the belt when the machinery was in operation, and that it was necessary for deceased to get upon the sill of said framework some two and a half feet above the floor in order to reach the pulley to replace the said belt. Some of plaintiffs' and all of defendant's witnesses testified that it was dangerous to attempt to put the belt on when it was revolving full speed, 300 to 400 revolutions per minute, but all of the witnesses for plaintiff and some for defendant testified that it was always put on by Chapman and others who helped him at times, while so running, without being slowed down. There was no evidence that it was ever slowed down to put the belt on, but there was evidence on plaintiffs' part that Chapman generally had a man to help him replace " and could have had help that morning had he called for it. Also that he could by stepping inside the main building a few steps away have pulled a rope and thereby signaled the engineer to slow down, but he failed to do so. One of defendant's mechanics, McDowell, had charge of repairing the machinery, and told one of plaintiffs' witnesses that it was no use to slow down to put on belts. There was also abundant evidence that the bushing of the pulley stuck out beyond the pulley an inch or two, which made it dangerous and liable to catch the clothing or gloves of persons attempting to replace the belt.

Ashley D. Craig testified: He was the son-in-law of decedent, and saw him a few minutes after his injury. His arm was still on the shaft, and the machinery still running. His left arm was torn off 3 or 4 inches above the wrist, with the leaders hanging, muscles torn loose, and flesh broken. He immediately sent him to a doctor's office, and he was sent to Cape Girardeau. He saw him the morning after the accident at 10 a. m. and he was dead. His arm had been amputated at the shoulder. He was in the best of health before the injury, worked every day, and supported his family. His wages were $3.25 a day.

Cross-examination: Mr. Chapman died at the hospital. He did not walk to the depot at Morehouse, but said he wanted to and did not want us to go with him. Plaintiff also offered in evidence a certificate of the Missouri state board of health, stating the cause of death was "accident, injury in sawmill, flywheel (surgical shock) produced fracture of arm and multiple lacerations. An operation preceded death."

Plaintiffs' evidence also showed that W. A. Dark was duly appointed guardian of plaintiffs by the probate court of New Madrid county and lived in said county when appointed, but afterwards went to East St. Louis, Ill. He testified, "It was hard to say whether he intended to remain there; at the time he went he made the change mostly on account of his wife's health." He had acted as guardian. His letters of guardianship were introduced in evidence and showed he was duly appointed October 20, 1916, and that he made his final report November 14, 1916, but that he had never been discharged as such guardian.

Defendant's...