Cunningham v. Journal Co.

• Decision Date: 05 May 1902
• Citation: 68 S.W. 592,95 Mo. App. 47
• Court: Missouri Court of Appeals
• Parties: CUNNINGHAM v. JOURNAL CO.<SMALL><SUP>1</SUP></SMALL>

68 S.W. 592

95 Mo. App. 47

CUNNINGHAM v. JOURNAL CO.¹

Court of Appeals at Kansas City, Missouri.

May 5, 1902.

INJURY TO EMPLOYÉ — ASSUMPTION OF RISK — DEFECTIVE MACHINERY.

1. Where plaintiff was injured by the breaking of machinery used in hoisting an iron casting, and the break was a clean break, showing no indication of a previous weakening at the point where it occurred, and the same machinery had been used by defendant for the same purpose in lifting weights equal to the one which was being raised when it broke, and the machinery was of the kind generally used for that purpose, the accident was one which could not, with ordinary care, have been guarded against, and was a hazard incident to the business, which plaintiff thereby assumed.

2. Where complainant alleged that plaintiff was injured by negligence of defendant in failing to furnish suitable machinery, he cannot recover on evidence that the same was negligently operated.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Michael Cunningham against the Journal Company. Judgment for plaintiff, and defendant appeals. Reversed.

McDougal & Sebree and John D. Wendorff, for appellant. F. F. Rozzellee, Frank P. Walsh, and John G. Park, for respondent.

BROADDUS, J.

The plaintiff recovered judgment against the defendant for personal injury received while in its employ on account of alleged defective machinery, from which judgment defendant appealed. The injury was received while defendant was installing a new printing press in its place of business at Ninth street and Grand avenue, in Kansas City, Mo., on the 11th of September, 1899. From the evidence it appears that the putting together of the printing press of the dimensions of the one in question required the use of machinery. A foundation had been laid for the press, over which, and 10 feet above the floor of the building, the defendant had constructed its machinery for hoisting and moving the heavy parts in place. This contrivance consisted of two hooks or brackets composed of cast iron attached to the ceiling about 12 feet apart, which supported an iron rail which extended from one to the other. A carriage moving on two wheels could move along the rail, pass the hangers, and travel to the ends of the rail, where they would be stopped by pegs. A pulley was attached to this carriage, through which a chain passed, which could be attached to the object sought to be lifted or carried. A man at the free end of this chain could lift a great weight. All this apparatus belonged to the defendant, except the block and tackle, which belonged to the Walter Scott Company, which had sold the press to the defendant; and its agent, an expert machinist, named Newmiller, had been engaged to superintend the work of erecting or putting the press together. The plaintiff, an employé of the defendant, was assisting in the work. While hoisting into position a large iron casting weighing from 2,200 to 2,500 pounds, one of said brackets broke, and the block and tackle fell on plaintiff's hand, he being at the time engaged in pulling on the end of said chain. It was shown that the brackets in question were of a character in general use, and had proven safe, and had been previously tested more than once, the defendant having used them in lifting up a similar press in 1893, and afterwards at the defendant's present location, to which it moved from Tenth and Walnut streets; and the weights hoisted previously were as great as the one being lifted when the hanger broke as stated. This bracket was brought into court for our inspection, and it was agreed, and it so appeared, that the break was what was called a "clean break"; that is, there were no marks or indications of a previous weakening at the point where the iron was severed. As the defendant contends that, if the plaintiff is entitled to recover, — which is denied, — he cannot recover on the facts proven on the allegations of the petition, we insert herein plaintiff's abstract of said petition, as it seems to state fairly all the substantial allegations contained therein, to wit: It avers "that plaintiff was employed by defendant September 11, 1899, as a laborer, to labor about and clean the parts of a newspaper press; that defendant undertook to elevate a certain heavy casting, weighing 3,000 pounds, from the floor, by means of a chain, block, and carriage supported by a certain...