Connolly v. St. Joseph Press Printing Co.

• Decision Date: 17 December 1901
• Citation: 166 Mo. 447,66 S.W. 268
• Parties: CONNOLLY v. ST. JOSEPH PRESS PRINTING CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Supreme Court

66 S.W. 268

166 Mo. 447

CONNOLLY v. ST. JOSEPH PRESS PRINTING CO.¹

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

MASTER AND SERVANT — ASSUMED RISK — CONTRIBUTORY NEGLIGENCE — OBVIOUS DANGER.

1. In an action by an employé for personal injuries the evidence showed that the defect in the machinery by which he was injured was not necessarily obvious to him, and it was not his duty to search for it, and such defect was not manifest to him in the ordinary discharge of his duty; and there was evidence that he did not know of any defect till a week before the accident, when it was repaired, and he was assured by the foreman that the machine was all right. Held it was insufficient to show that he assumed the risk.

2. After repair of machinery and assurance by defendant's foreman that it was all right, plaintiff was not guilty of contributory negligence in continuing in the performance of his duties.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Edward A. Connolly against the St. Joseph Press Printing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Brown & Dolman, for appellant. Thos. F. Ryan and J. W. Boyd, for respondent.

BRACE, P. J.

This is an appeal by the defendant from a judgment of the Buchanan circuit court in favor of the plaintiff for the sum of $5,000 in an action for personal injuries. The only errors assigned for reversal are the refusal of the court to sustain a demurrer to the evidence and to give two instructions asked for by the defendant. The court gave seven instructions for the defendant, presenting its side of the case very favorably, and it is only necessary to say, in regard to these refused instructions, that they contained nothing to which the defendant was entitled that was not included in the instructions given. The only real question in the case is whether the court erred in submitting the case to the jury. The cause of action stated in the petition is, in substance: "That the defendant owned and operated a printing plant, in which the plaintiff was one of its employés. That among other instruments and machinery used and operated in its business was a machine known as a `shaver,' with a knife attached to a spindle for trimming and shaving stereotype plates, which had a certain lever and spring, and brake or shoe and grooves, and fasteners or clutches, that acted upon a belt and pulley, and other appliances of said machine, which, when in proper repair and condition, would stop and hold said spindle to which said knife was attached, so that the stereotype plate could be safely removed by the employé in charge. That on and for a long time prior to the 29th of October, 1898, the defendant had negligently permitted this lever, spring, and brake or shoe and the grooves, fasteners, and other appliances to become and remain worn and defective, so that they would not hold the spindle, which would revolve when it ought to remain stationary, which condition had been known to the defendant for months, and was not known to plaintiff. That at said date, and while said machine was in this condition, the plaintiff, in the discharge of his duty as such employé, attempted to take out a plate which had been shaved, when the knife suddenly revolved on account of said defects, cutting off his right hand and two fingers of his left hand." The answer was a general denial, a plea of contributory negligence, and risk assumed.

The following picture shows the machine upon which the injury occurred:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The bed consists of a sector of something less than half a hollow cylinder about two feet long and one foot internal diameter, lying horizontally on its foundation with the concave surface up. Along the center of the circle of which this concave surface forms a part, and extending the length of the bed, extends a spindle of great diameter bearings at each end, carrying a knife its entire length, and extending out so far from the spindle or shaft that when it revolves the edge of the knife describes a circle about half an inch inside the concave surface of the bed. The stereotype plate is cast about 17 inches wide and 20 inches long, and is curved to nearly a half circle, so that it exactly fits the concave surface of the bed. The operator stands on the side of the machine at the right of the picture, and facing it. He puts the curved plate in the bed of the machine, takes hold of the ring-shaped handle at the end of a long steel bar at his right and pulls it. Two pins are seen on the other end of the bar, one on each side of the belt which comes down from a shaft above. As he pulls out the bar, the farther pin pulls the belt from a loose pulley, on which it seems to be running in the picture, to the tight pulley, which appears naked in the picture. The knife slowly revolves toward him at a speed of about eight revolutions per minute. The edge enters the bed on the side toward him, and passes out on the outer side, shaving the plate as it goes. The instant it leaves the plate on the back side, he shoves in the bar, the handle of which he has been holding, the pin nearest him forces the belt to the loose pulley, the knife stops, and he takes the finished plate, and removes it from the machine.

The parts of the machine which produce these movements are shown by the following picture:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

They consist of a belt coming down from its line shaft above so as to pass over two pulleys, a tight and a loose one, situated side by side on a screw shaft, the screw of which engages the teeth of a large gear wheel keyed to the end of the knife shaft, which is out of sight beyond the wheel, and the long horizontal shifting bar, which pushes the belt to the loose pulley to stop the machine, in which position it appears in the picture, and pulls it to the pulley which is keyed tight to the screw shaft to start it. The riveted end of the pin that pushes the belt to the loose pulley can be plainly seen when it passes through the bar at the edge of the belt. The pin which pulls the belt to the tight pulley is hidden by the shadow of the ascending portion of the belt. At the outer end of this lever is shown a horizontal slat passing through it. At the end of this slat nearest the operator appears a vertical lever, near the upper end of which a bolt is fixed, which passes loosely through this slat. Following this lever downward in the picture, we come to its fulcrum, which appears as the riveted head of a pin or bolt, and farther down is the brake shoe, which appears as it presses on the top of the tight pulley. This is for the purpose of stopping the revolution of the screw suddenly, with the same movement which shifts the belt from the tight to the loose pulley. Next to the teeth of the wheel on each side may be seen a small standard with a slot, through which the shifting bar passes, and by which it is held steadily in its place. At the bottom of the slot next the operator is a spring, which continually presses the bar upward against the top of the slot, and on the top of the bar are two notches into which the material at the top of the slot is pressed when the bar reaches the right place in starting and stopping, and which are intended to hold it so that the belt will not shift with its own movement. In starting the machine the operator takes hold of the ring-like handle, presses downward so as to disengage the notch in the top of the bar, and pulls it toward him, pulling the belt to the tight pulley. When the outer end of the horizontal slot in the bar strikes the bolt in the top of the brake lever, it raises the brake from the pulley, and the screw revolves. The other notch in the top of the bar engages itself, and holds it in position when the operator releases it. To stop the machine this operation is reversed.

Zumwalt, Snowden, and Shoemaker, stereotypers, who had worked in the defendant's plant, and had served this machine in the same line of duty as did the plaintiff, and who were introduced as witnesses in his behalf, testified that for several years prior to the accident the spindle or shaft carrying the knife would at times revolve when the bar of the shifter was shoved back or in, and the spindle should have been stationary but they seem to have had very vague ideas, if any, of the cause of this occasional eccentric movement. The following extracts from the testimony of the plaintiff show his version of the accident: "Q. Did you ever work at that machine? A. Yes, sir. Q. Under whose direction? A. Under Mr. Louis Connolly's. Q. About how long did you work at that machine before you were injured? How many years? A. A little over three years. Q. Who else used that machine? A. Why, Mr. Louis Connolly himself, and other men that worked there with us. Q. Tell the jury whether, in putting in and taking out a plate out of that machine, it is necessary to stop the spindle to which the knife is attached? A. Yes, sir; it is necessary to stop it. Q. How do you do that? A. By working the belt shifter, reversing the belt from the tight pulley to the loose one. Q. During the time you were working the machine, did the shifter work the belt and stop the spindle while you operated it? A. Yes, sir. Q. Now, what night or morning was it that you were injured? A. Saturday morning, the 29th day of October. Q. About what time in the morning? A. Between fifteen minutes of three, if my knowledge serves me right. Q. How many plates had been shaved on that machine up to that time, that night, — about how many? A. Well, there may have been about — I think that was the eleventh plate. About ten plates before that. Q. Who used the machine to shave the plates that night before you were hurt? A. I did, and Mr. Connolly, the foreman. Q. About how many plates did you shave that night? A. Possibly six or eight. Q. Now, during that night, up to the time...