Cook v. Atlas Portland Cement

• Citation: 263 S.W. 1027,214 Mo. App. 596
• Decision Date: 05 February 1924
• Docket Number: No. 17877.,17877.
• Parties: COOK v. ATLAS PORTLAND CEMENT et al.
• Court: Court of Appeal of Missouri (US)

263 S.W. 1027

214 Mo. App. 596

COOK v. ATLAS PORTLAND CEMENT et al.

No. 17877.

St. Louis Court of Appeals. Missouri.

February 5, 1924.

Rehearing Denied May 29, 1924.

Appeal from Hannibal Court of Common Pleas; Charles T. Hays, Judge.

Action by Joseph J. Cook against the Atlas Portland Cement Company and another. From judgment for plaintiff, defendants appeal. Affirmed.

George A. Mahan, Dulany Mahan, and Ezra T. Fuller, all of Hannibal, for appellants.

D. H. Eby, Ben E. Hulse, and Berryman Henwood, all of Hannibal, for respondent.

BRUERE, C.

This is an action to recover damages for injuries received by plaintiff, while engaged in the service of the defendant the Atlas Portland Cement Company, by the alleged negligence of the company and its employee William 3. Mitchell. Plaintiff obtained a verdict and judgment below for $5,000, and defendants appeal.

The petition, inter alia, averred that on' the 24th day of August, 1919, plaintiff was in the employ of defendant cement company and that defendant Mitchell was an, assistant foreman under defendant's superintendent, Frank Smith, in charge of defendant's mills in Clinker Mill building No. 2; that on said day plaintiff was ordered and directed by said Frank Smith to assist in changing the screens in mill No. 18, in Clinker Mill building No. 2; that in obedience to said order, with the assistance of other employees of said cement company, plaintiff proceeded to the performance of such work under the orders and directions of said William. J. Mitchell, assistant foreman in charge of the work of changing said screens; that in preparation for the doing of said work the clutch attached to the line shaft, which propelled said mill, was, under the directions and orders of said William J. Mitchell, thrown off, thereby causing said mill to cease revolving and the machinery thereof to stop running; that, in making the change of such screens as aforesaid, it became necessary for plaintiff to get inside of said mill ; that after said clutch was thrown off, and while said mill was not revolving and the machinery thereof was not in motion, the plaintiff started to get inside of said mill for the purpose aforesaid; that just after a portion of plaintiff's body had passed through the doo of the mill, and without warning to plaintiff, the said William Mitchell carelessly and negligently directed, and, with knowledge of the danger to which plaintiff was then and thereby exposed, knowingly permitted one C. E. Brown, the servant and employee of said cement company, then and there under the control and command of said William J. Mitchell, to throw on said clutch thereby causing said mill and the steel rollers therein to revolve, whereby and by reason whereof the body and arms of the plaintiff were caught between said steel rollers and the jam of said door in said mill and were bruised, crushed,, and otherwise injured. It is further alleged that at the time said clutch was thrown on and said mill was started and put in motion, the defendant cement company and said vice principal and assistant foreman, the said William J. Mitchell, knew, or in the exercise of ordinary care oh their part could have known, of the dangerous situation in which the plaintiff was placed as aforesaid in time to have prevented the throwing on of said clutch and putting said mill in motion and in time to have given the plaintiff due and timely warning of the danger to which he was exposed as aforesaid, and could have thereby avoided injuring the plaintiff ; that by reason of the premises defendant cement company and defendant William Z. Mitchell failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work and negligently and carelessly permitted C. B. Brown to throw on said clutch while plaintiff was passing his body through said door in said mill and negligently failed to give the plaintiff any warning that such clutch was going to be thrown on and said mill started and put in motion, and thereby negligently created risks not ordinarily incident to plaintiff's said employment and that rendered plaintiff's work dangerous and unsafe; and that said injuries to plaintiff were the direct and proximate result of said negligence on the part of said cement company and its said vice principal, defendant William J. Mitchell.

The answer is a general denial coupled with a plea of contributory negligence and assumption of the risk and a further plea that plaintiff was injured by the act of his fellow servant or fellow servants and employees, on which issue was joined by reply.

Defendant's assignment of errors are: First, that the trial court erred in refusing to direct a verdict for the defendant at the close of the whole case; second, that the trial court erred in giving to the jury instruction No. 1, requested by plaintiff ; and, third, that the verdict is excessive.

The facts in the case, as to how the accident occurred, are not in dispute. Briefly summarized they are as follows: The plaintiff, at the time of the accident, was in the employ of the defendant, Atlas Portland Cement Company, at its manufacturing plant as a common laborer. William J. Mitchell was the assistant foreman under defendant's superintendent, Frank Smith, and as such had charge of defendant's mill No. 18, in Clinker Mill building No. 2, with authority to give orders and direct the men under him in their work. It was Mitchell's duty to inspect from time to time the pulverized product as it came through the screens in the mills, and if he found coarse particles in such product he would know that the screens had holes in them, and it thereupon became his duty to see that such screens were changed.

Mill No. 18 was used to grind up clinkers into pulverized form. The grinding was done by means of three large steel rollers, weighing about 400 or 500 pounds each, which revolved in a circle inside of the mill and rolled against a concrete ring. The friction of the rollers on the ring would cause them to become red hot. The mill was operated by electric power, which was imparted from a line shaft to the mill. There was a clutch near the line shaft which controlled the power from the shaft to the mill. By means of a block or wedge, placed over the top of the mill and between a spoke of a wheel, the rollers in the mill could be kept from revolving more than 18 inches when the power was thrown on. The mill was octagon in shape and about 7 feet high. On each side or panel, inside the mill, was a screen. These screens were fastened to the panels by bolts, which were put through the screens and panels from the inside of the mill and extended to the outside, where nuts or taps were screwed on them and securely fastened with wrenches.

Shortly prior to the accident Mitchell informed Frank Smith, defendant's superintendent, that mill No. 18 was graveling and the screens needed changing; whereupon Smith told Mitchell to "take Cook over there to help and fix up the mill." In obedience to this order Mitchell took the plaintiff to said mill and ordered Brown, the miller there employed, to shut down the mill. After the mill was shut down the plaintiff and C. E. Brown, under and in response to the orders of Mitchell, and under his supervision, began the work of changing the screens in the mill. They first removed one of the panels which formed the door and swung it back by means of a block and tackle. This door was on the north side of the mill, directly opposite and about 20 feet from the line shaft. After that the plaintiff went to work to change the screen on the door panel. Brown went inside the mill and first changed the screen to the right of the opening, where Mitchell was assisting him in screwing on the taps on the outside ; then he changed the second screen to the left of the opening and put the bolts through from the inside. He then attempted to change another screen and found one of the rollers in the way and that it was necessary to move the mill in order to change this screen. Brown then came out of the door and hollered to Mitchell "Look out, Bill ! I am going to move the mill." It appears that the running of the machinery and the operation of the other mills in the building made a great deal of noise, so that it became necessary to shout in a loud tone of voice in order to be heard. When Brown hollered to Mitchell, "Look out ; I am going to move the mill," his head was about 15 or 18 inches from Mitchell's ear. Mitchell at this time was standing on the outside of the mill working at the first panel to the right of the door and about a foot from the opening. When Brown left the mill through the opening, he climbed up on the mill and changed the block or wedge so that he could turn on the clutch and move the rollers. He then got down off the mill and proceeded around the mill to the power shaft, and after throwing some water on the clutch threw the clutch on and moved the mill about 18 inches. After Brown started the mill he went in front of the mill and found the plaintiff with his shoulders and back inside the mill and caught between a roller and the jam of the door. Brown then ran back to the clutch, turned off the power and with the help of Mitchell, pried the roller from the plaintiff and got him out of the mill.

The plaintiff in his testimony states that, having finished putting the screen on the door, he walked to the second panel to the left of the opening and started to screw the tap or bolt which Mr. Brown had pushed through the panel from the inside of the mill; that in doing so he shoved the bolt back into the mill and then waited a few minutes for Brown to shove the bolt back through to him; that when the bolt did not appear he...