Collinsworth v. The United Zinc & Chemical Co.

• Decision Date: 14 July 1914
• Citation: 169 S.W. 50,260 Mo. 692
• Parties: THOMAS W. COLLINSWORTH v. THE UNITED ZINC AND CHEMICAL COMPANY, Appellant
• Court: Missouri Supreme Court

169 S.W. 50

260 Mo. 692

THOMAS W. COLLINSWORTH v. THE UNITED ZINC AND CHEMICAL COMPANY, Appellant

Supreme Court of Missouri, First Division

July 14, 1914

Appeal from Jackson Circuit Court. -- Hon. H. L. McCune, Judge.

Affirmed.

J. C Rosenberger, Kersey Coates Reed and Ashley & Gilbert for appellant.

(1) The rule res ipsa loquitur has no application to the facts of this case and the trial judge did right in granting the peremptory instruction and his successsor judge erred in setting aside the nonsuit. Even on plaintiff's own testimony the proof does not show that the back table of the machine suddenly, unexpectedly or otherwise dropped or subsided while plaintiff was using the planer. But for the purpose of the present argument we propose to accept plaintiff's statement that he "felt" the back table drop or go down at its face value, and propose therefore, to assume that while plaintiff was using the planer, the back table thereof suddenly and without human agency dropped or went down, thereby jerking the stick out of plaintiff's hand and causing the injury. Defendant's contention is that the rule res ipsa loquitur has no application to the facts of this case, first, because no negligence can be inferred from the fact alone that on this occasion the back table dropped or subsided (assuming this to be true); that at most this was but proof of the primary physical cause of the injury, or, in other words, but proof of the happening of the accident, and that it was necessary for plaintiff to go further and produce some evidence, either direct or circumstantial, as to the secondary cause, that is as to what caused the alleged movement of the back table, and if this was shown to be due to some defect in the machine, it was incumbent on plaintiff to show further that it was such a defect as could have been discovered by defendant by the exercise of ordinary care; and, second, because the rule res ipsa loquitur never applies in a master and servant case, where, as here, the injury occurs while plaintiff is operating and in charge of the appliance and he and his fellow servants have access to and are familiar with it and its use, and have full opportunity to know thereof, so that the cause of the accident is susceptible of direct proof and specification, requiring no resort to the rule invoked or to inferences or presumptions, the rule itself being one of necessity, not a favorite of the courts and wholly inapplicable in a master and servant case, where, as here, the facts are as much, if not more, in the possession of the plaintiff as of the defendant. The foregoing principles relied on by defendant are well sustained by the cases in this as well as in other jurisdictions. Klebe v. Distilling Co., 207 Mo. 480, 13 L. R. A. (N. S.) 140; Hamilton v. Railroad, 123 Mo.App. 619; Breen v. Cooperage Co., 50 Mo.App. 202; Glascock v. Swofford Co., 106 Mo.App. 657; Howard v. Railroad, 173 Mo. 531; Beebe v. Transit Co., 206 Mo. 419, L. R. A. (N. S.) 760; Oglesby v. Railroad, 177 Mo. 272; Patton v. Railroad, 179 U.S. 658; Railroad v. Barrett, 166 U.S. 617; Shandrew v. Railroad, 142 F. 320; Searles v. Railroad, 101 N.Y. 662. An examination of the foregoing cases will show that it would be stating it altogether too broadly to say that the rule "the thing speaks for itself" never applies in master and servant cases. Even the cases we have cited are careful to say that there may be cases, albeit rare and exceptional, in which the rule will be applied. Klebe v. Distilling Co., 207 Mo. 480; Beebe v. Transit Co., 206 Mo. 419; Hamilton v. Railroad, 123 Mo.App. 619. But these and all of the cases unite in holding that in master and servant cases, before the rule will be applied, the plaintiff must show not only that an accident happened, but that there is that in the circumstances of the occurrence which in and of itself raises an inference of the master's negligence and excludes causes for which the master may not be responsible, and to this has been added the further qualification that where the injured servant when hurt is operating the machine, and he and his associated servants have access to and are familiar with it, so that the exact cause of the accident is susceptible of proof by witnesses, the plaintiff will be required to specify and prove negligence. Plaintiff's claim that the table dropped is so opposed to the physical facts and so opposed to the undisputed testimony that no verdict rendered in his favor would be allowed to stand. Brosius v. Lead & Zinc Co., 149 Mo.App. 181; Oil Co. v. Knisel, 79 Ark. 608; Noble v. Crane, 169 F. 55. (2) Plaintiff on his own testimony was guilty of contributory negligence.

Guthrie, Gamble & Street for respondent.

(1) The continued use of a machine known from previous experience to be erratic and dangerous in its action is negligence even if the cause of its dangerous action be not disclosed by inspection. Blanton v. Dold, 109 Mo. 64; Klebe v. Distilling Co., 207 Mo. 490; Oborn v. Nelson, 141 Mo.App. 435; Moffat v. Bateman, L. R. 3 P. C. 115, 22 L. T. (N. S.) 140; Ice Co. v. Finn, 80 F. 483; Ousley v. Railroad, 86 Ga. 538; Mooney v. Lumber Co., 154 Mass. 407; Railroad v. Stanford, 12 Kan. 372; Harter v. Railroad, 55 Kan. 256; Bridge Co. v. Fellows, 52 Ill.App. 504; Krogstad v. Railroad, 46 Minn. 18; Burnside v. Mfg. Co., 121 Mich. 129; McKenna v. The Carolina, 30 F. 200; Kaplin v. Biscuit Co., 38 N.Y.S. 1049. (2) There was evidence for the consideration of the jury upon the issue that this machine had a dangerous propensity and that the master knew it. Bender v. Railroad, 137 Mo. 245; Montgomery v. Railroad, 181 Mo. 477; Powers v. Transit Co., 202 Mo. 280; Wilson v. Board, 63 Mo. 137; Moore v. Transit Co., 194 Mo. 9; Franke v. St. Louis, 110 Mo. 525; Phelan v. Granite Co., 115 Mo.App. 432; Jordan v. Transit Co., 202 Mo. 429, 430.

BROWN, C. Blair, C., concurs in result.

OPINION

BROWN, C.

This is a suit to recover damages for personal injuries suffered by plaintiff while operating a planing machine in defendant's carpenter shop. It was tried in October, 1905. The petition charges the negligence complained of as follows: "That said machine consisted of two tables, a front table and a back table, with a planer between, and for the performance of the work which plaintiff was then doing it was necessary that the tops of said tables should remain level and secure, but plaintiff says that on and prior to said September --, 1905, the defendant so negligently constructed and maintained said machine and the appliances supporting said back table that while plaintiff was in the performance of his work, pushing a board upon said planer and jointer, said back table suddenly and without warning, because of its negligent construction and maintenance, dropped down and thereby caused the plaintiff, who was holding said board, to lose control of the same, and threw his right hand against the knives of said planer and jointer, severing the four fingers of his right hand and injuring the thumb of his right hand." The answer consisted, first, of a general denial; second, a plea of contributory negligence; third, a plea of assumption of risk; and, fourth, that the injury resulted from the act of a fellow servant. This was all denied generally by replication.

The trial was in October, 1908, in Division Four of the Jackson Circuit Court, before Hon. H. L. McCune, Judge of said court, who, at the close of all the evidence instructed "that under the law and the evidence plaintiff has no cause of action against the defendant, and your verdict must be in favor of defendant," whereupon the plaintiff took a nonsuit with leave to move to set the same aside.

The plaintiff, within four days, filed his motion to set aside the nonsuit on the ground, among others, that the court erred in giving the peremptory instruction, and that under the pleadings and evidence he was entitled to have his cause submitted to the jury.

While this motion was pending and on January 1, 1910, the term of Judge McCune expired and Judge W. O. Thomas succeeded him as judge of said court, and afterward, on May 28, 1910, and during the April term, sustained said motion and set aside the nonsuit, from which order this appeal is taken.

Before filing its answer, and at the April term, 1908, the defendant filed its motion for an order on plaintiff to make his petition more definite and certain on the following grounds:

"1. To show in what way and manner said defendant was negligent in the construction of the planing mill and tables referred to in said petition.

"2. To show in what way and manner said defendant was negligent in maintaining said planing mill and tables referred to in said petition.

"3. To show what plaintiff was doing when said back table dropped down as referred to in said petition.

"4. To show how and in what manner plaintiff's right hand was drawn or thrown against the knives of said planer as the result of the dropping down of said table referred to in said petition.

"5. To show how and in what manner said back table of said planing machinery referred to in said petition dropped down as the result of any negligence on the part of said defendant.

"6. To state in what capacity plaintiff was being employed by said defendant at the time said plaintiff alleges he received the injuries referred to in said petition.

"Defendant further states that it cannot safely answer said petition or go to trial in said cause unless said petition is made more definite and certain in the particulars stated."

This was overruled by the court and bill of exceptions filed to such ruling at the same term, after which the answer was filed by leave of court.

The accident occurred October 17, 1905, in defendant's carpenter shop in Argentine,...