Collins v. Star Paper Mill Company
| Decision Date | 04 April 1910 |
| Citation | 127 S.W. 641,143 Mo.App. 333 |
| Parties | VERONICA COLLINS, Respondent, v. STAR PAPER MILL COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
AFFIRMED.
Cause affirmed.
Douglass & Watson and Warner, Dean, McLeod & Timmonds for appellant.
(1) The court erred in excluding evidence as to the directions given to deceased by his foreman. Brim v. Fleming, 135 Mo 606; Bank v. Rood, 132 Mo. 261; Stanton v Ryan, 41 Mo. 510; Leahy v. Simpson, 60 Mo. 83; Baer v. Paff, 44 Mo.App. 35; Clark v Thias, 173 Mo. 645. (2) The court erred in admitting in evidence mortality tables taken from the statutes of 1879. The omission of that table of figures from the revision of 1889, and the substitution of the actuaries' or combined experience table, was equivalent to a repeal of so much of that law as was so omitted. R. S. 1889, sec. 6606; Blodgett v. Shafer, 94 Mo. 653; Bird v Sellard, 113 Mo. 580; Merriwether v. Love, 167 Mo. 514; Berkshire v. Railroad, 28 Mo.App. 225; Young v. Railroad, 33 Mo.App. 509. (3) If these statutes were in force, they should not have been read to the jury. R. S. 1899, sec. 748; Sparf v. United States, 156 U.S. 51; Woods v. Campbell, 110 Mo. 572. (4) The court erred in refusing defendant's seventh instruction on the issue of the contributory negligence of deceased. Rigsby v. Supply Co., 115 Mo.App. 297; Lang v. Bolt & Nut Co., 131 Mo.App. 146; Holmes v. Brandenbaugh, 172 Mo. 53; Shepherd v. Transit Co., 189 Mo. 362; Adolff v. Baking Co., 100 Mo.App. 199; Browning v. Kasten, 107 Mo.App. 59; McKee v. Railroad, 96 Mo.App. 671.
Botsford, Deatherage & Creason for respondent.
(1) It was the duty of the defendant to safely and securely guard its shafting, gearing, etc., in its manufacturing establishment, the same being dangerous to its employees while engaged in their ordinary duties. R. S. 1899, sec. 6433; Lore v. Manufacturing Co., 160 Mo. 608; Bair v. Heibel, 103 Mo.App. 623; Stafford v. Adams, 113 Mo.App. 717. (2) Where a master fails to safely and securely guard the shafting, gearing, etc., as required by statute, the servant does not assume the risk thereof. Bair v. Heibel, 103 Mo.App. 623; Stafford v. Adams, 113 Mo.App. 717; Curtis v. McNair, 173 Mo. 279; Parks v. Railway, 178 Mo. 108. (3) It is negligence per se for the owner of a factory to fail to so guard said shafting, gearing, etc. Stafford v. Adams, 113 Mo.App. 717; Colliott v. Mfg. Co., 71 Mo.App. 163; Lore v. Mfg. Co., 160 Mo. 608. (4) In the absence of evidence to the contrary, deceased is presumed to have been in the exercise of ordinary care at the time of his injury. (5) Contributory negligence is a defense, and the burden is upon the defendant to establish that defense with proof. Miller v. Railway, 164 Mo. 198; Bueshing v. Light Co., 73 Mo. 219; Fairgrave v. Moberley, 29 Mo.App. 155; Smiley v. Railway, 160 Mo. 635. (6) In a suit under sections 2865-6, Revised Statutes 1899, for the death of a person, caused by a wrongful act, neglect or default of another, the expectancy of life may be considered by the jury in estimating the damages. O'Mellia v. Railroad, 115 Mo. 205; Jones v. Railroad, 178 Mo. 528. (7) And the American experience mortality table is admissible in evidence to show probable duration of life. Boettger v. Architectural Co., 136 Mo. 531; Corbitt v. Mooney, 84 Mo.App. 645. (8) The testimony of Thomas Pearson, defendant's superintendent and agent, with respect to the contract of employment between himself as agent for defendant and Joseph Collins, was properly excluded. Williams v. Edwards, 94 Mo. 447; Hollmann v. Lange, 143 Mo. 107; Nelson v. Railroad, 66 Mo.App. 652; Henry v. Buddecke, 81 Mo.App. 365; Donnell v. Jung, 81 Mo.App. 581.
O. C. Mosman, of counsel for appellant, on motion for rehearing.
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, Missouri. Its plant consisted of several disconnected buildings. The building in which plaintiff's husband received his death was about two hundred and fifty 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 twelve feet high and twelve 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 eighteen 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 two and a half 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 twenty feet in height and the tanks were situated within about thirteen inches of the south wall. The line shaft was about sixteen 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 cogwheels 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 thirty-five 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 seven 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, Revised Statutes 1879, providing for the valuation of life policies by the American experience mortality table.
The plaintiff seeks to recover on the ground of the alleged negligence of the defendant to guard the shafting as provided by section 6433, Revised Statutes 1899.
The plaintiff recovered judgment for $ 5500, and defendant appealed.
It is contended by defendant that under the evidence plaintiff was not entitled to recover, on the ground that it was not shown that deceased was in the performance of his duty when he was killed; as it must be conceded that if deceased's only duty was to look after the tanks, he was not in the performance of such duty while oiling the shaft. But we are not convinced that deceased was acting outside of the scope of his duties while he was engaged in oiling the machinery notwithstanding the statement of defendant's superintendent that he had no such duty to perform. When we come to consider certain facts to the effect that he was habitually seen to do the oiling 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, we believe...
To continue reading
Request your trial