Collins v. Star Paper Mill Co.

• Decision Date: 04 April 1910
• Citation: 143 Mo. App. 333,127 S.W. 641
• Parties: COLLINS v. STAR PAPER MILL CO.
• Court: Missouri Court of Appeals

127 S.W. 641

143 Mo. App. 333

COLLINS v. STAR PAPER MILL CO.

Kansas City Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 2, 1910.

1. MASTER AND SERVANT (§ 276) — DEATH OF SERVANT — SCOPE OF EMPLOYMENT — EVIDENCE.

In an action for the negligent death of a servant, the duties of the servant, in the absence of positive evidence, may be proved by circumstantial evidence.

2. EVIDENCE (§ 587) — CIRCUMSTANTIAL EVIDENCE.

To sustain an issue of fact on circumstantial evidence, it is necessary to produce a chain of connected circumstances or facts pointing to the fact in issue.

3. MASTER AND SERVANT (§ 276) — SCOPE OF EMPLOYMENT — EVIDENCE.

Where it was conceded that it was the duty of a servant to look after tanks in a mill and see that they were supplied with water and did not overflow, proof that he was habitually seen to do the oiling of the machinery, and that he constantly carried the oiler in his hand, while engaged around the tanks, and that no other person was ever seen to do the oiling, justified a finding that he was required to oil the machinery, and that when he was injured while oiling he was acting within the scope of his employment.

4. MASTER AND SERVANT (§ 276) — SCOPE OF EMPLOYMENT — EVIDENCE.

Where facts justified the inference that it was the duty of a servant to oil machinery, and other facts justified the inference that he was killed while oiling the machinery, unguarded in violation of the statute, a finding that the master was liable was not open to the objection that it was based on an inference.

5. APPEAL AND ERROR (§ 996) — EVIDENCE — REVIEW.

Where facts are admitted or proved, it is legitimate to draw from them such reasonable inferences as will sustain a verdict.

6. EVIDENCE (§ 54) — PRESUMPTIONS.

A presumption of fact is an inference from other known facts, and a presumption, to be available in proof of a cause of action, must rest on established facts and not on other presumptions.

7. WITNESSES (§ 141) — COMPETENCY — TRANSACTIONS WITH DECEASED PERSONS.

The superintendent of a master is not competent to testify after the death of a servant as to what instructions he gave the servant as to his duties.

8. EVIDENCE (§ 364) — DAMAGES — LIFE EXPECTANCY.

The American Experience Table, recognized by Rev. St. 1889 and 1899 (Rev. St. 1889, § 5841, Rev. St. 1899, § 7882 [Ann. St. 1906, p. 3741]), is admissible in an action for negligent death to govern the expectancy of the life of decedent.

9. DEATH (§ 77) — DAMAGES — EVIDENCE — LIFE EXPECTANCY.

Where, in an action for negligent death, the evidence showed that decedent was at the time of his death 35 years old, and that he had been a common laborer a few weeks prior to his engaging in night service in which he ended his life, a finding that he was in good health and with a life expectancy, as shown by the American Experience Table, was justified.

10. MASTER AND SERVANT (§ 272) — INJURY TO SERVANT — AUTHORITY OF FOREMAN.

A foreman in charge of a particular work has presumptive authority to give directions to workmen engaged in the work, and evidence of the foreman's directions to the workmen is competent, though there is no positive evidence that he had authority to give such directions.

11. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — PRESUMPTIONS.

In the absence of evidence, the law presumes that a servant killed while at work was in the exercise of ordinary care.

12. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — PRESUMPTIONS.

Where, in an action for the negligent death of a servant, while oiling the machinery while in motion, there was evidence that he could have stopped the machinery while oiling it, but it did not appear that it was necessary or customary

to do so, the presumption that he exercised due care was not overcome.

13. MASTER AND SERVANT (§ 204) — INJURY TO SERVANT — ASSUMPTION OF RISK.

The rule that a servant impliedly assumes by his contract of hire the risks incident to the employment has no application where a master disobeys a statute requiring him to guard dangerous machinery, and a servant working about unguarded machinery does not assume the risk, though the danger is obvious.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by Veronica Collins against the Star Paper Mill Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Douglass & Watson, and Warner, Dean, McLeod & Timmonds, for appellant. Botsford, Deatherage & Creason, for respondent.

BROADDUS, P. J.

The plaintiff seeks to recover damages for the death of her husband alleged to have been caused by the negligence of the defendant.

The defendant corporation was engaged in the manufacture of paper in Kansas City, Mo. Its plant consisted of several disconnected buildings. The building in which plaintiff's husband received his death was about 250 feet from the other buildings, and consisted of three stories. At the time, he was in defendant's employ, and engaged in work in the first story of said building. There were five round tanks in the room, each about 12 feet high and 12 feet in diameter, two of which were situated on the south side, and three on the north side, of the room. The two on the south side standing on a line east and west and about 18 inches apart. They were used for the purpose of cleaning old printed paper, taking the ink stain out of it, so that it might be used in the making of white printing paper. The tanks were filled with hot water. The operating power was situated in another building, and was connected with a line shaft, which was attached to the south side of the building near the ceiling. The paper in the tanks was washed by the water flowing in and out, and was stirred by wooden arms attached to the line shaft. There were steps leading up to within about 2½ feet of the tops of the tanks, and a kind of platform of unequal width extending between the tanks. The main purpose of having these steps and platforms was to enable the person in charge to ascend to and be in a position to look into the tanks to see if they contained the proper quantity of water. There were pieces of lumber laid crosswise over these tanks. The room was 20 feet in height, and the tanks were situated within about 13 inches of the south wall. The line shaft was about 16 inches from the ceiling and about the same distance from the wall. There was a window in the south wall opposite the tanks. A person standing on the platform between the tanks was not within reach of the shaft, but standing on the timbers laid across the tops of the tanks would be within its reach. Chains ran down from the shafting into the center of each tank. These chains worked on sprocket wheels attached to the shaft, which operated the cog wheels in the center of the tanks. The machinery and shafting had places on them used for the purpose of oiling. The shafting could have been, but was not, guarded.

The deceased was 35 years of age. He was the night man in charge of the tanks. No other person worked with him, or in the same room. He was found in the morning about 7 o'clock dead with his body attached to the shaft. It was evident that his clothing or some part of his body had caught on the shaft, and that he was thrashed by its revolutions against the south wall of the building and by that means killed. An oiling can and some of his fingers were found under the window on the outside of the building. It was admitted that a part of his duties was to look after the tanks, and see that they were supplied with water and did not overflow. In the performance of this duty it was only necessary for him to go up on the platform in which position he would not be within reach of the shaft. There was a controversy whether it was any part of his duty to do the oiling. There was evidence upon the part of plaintiff that, while deceased was in charge in the performance of his admitted duty, he would go up and oil the shaft, and that he constantly carried the oiler in his hand. In order to do the work he would necessarily have to stand upon the timber laid across the tanks. And the inference is almost unavoidable, from the fact that the oiler, with his fingers, was found outside of the window, that he was oiling the shaft when he was caught by it.

The evidence of defendant's superintendent was that the only duty of deceased was to look after the tanks, and to see that they were supplied with water and did not overflow. On cross-examination he, however, stated that as the machinery was new it required more oiling than old machinery or machinery that had worn smooth. The defendant also showed that they had a night and a day oiler whose duty it was to oil the machinery, and that the machinery required oiling twice a day. On the contrary, it does not appear that the night oilers were ever seen in the room with deceased, by a woman friend of plaintiff who often went with her on visits to deceased while he was on duty. The defendant offered to prove by the superintendent what instructions he gave to deceased as to his duties. Upon objection of plaintiff the witness was not allowed to answer.

The plaintiff introduced and read to the jury, over defendant's objection, section 5968, Rev. St. 1879, providing for the valuation of life policies by the...