Daniels v. Goeke
| Decision Date | 04 May 1915 |
| Citation | 176 S.W. 301,191 Mo.App. 1 |
| Parties | AMELIA DANIELS, Respondent, v. FREDERICK W. GOEKE et al., Appeallants |
| Court | Missouri Court of Appeals |
Argued and Submitted April 6, 1915.
Appeal from St. Louis City Circuit Court--Hon. Thomas C. Hennings Judge.
AFFIRMED.
Judgment affirmed.
Ellerbe & Brokaw for appellants; Lubke & Lubke of counsel.
(1) The court erred in admitting over the defendants' objection plaintiff's exhibit B, a drawing made from a photograph not offered in evidence. It was not shown when the photograph was taken or when the drawing was made, nor was any one able to state that the drawing was an accurate picture of the coupling and set screws. (2) The court erred in admitting over the objection of the defendants the alleged conversation between the witness Thomas J. Schueddig and the defendants' former superintendent Heitzman. Heitzman being dead Schueddig was an incompetent witness under the proviso contained in section 6354, R. S. 1909, to any conversations or statements passing between him and Heitzman. Carroll v. Railroad, 157 Mo.App. 247; Leavea v. Railroad, 171 Mo.App. 24; Taylor v George, 176 Mo.App. 215. (3) The deceased in attempting to replace the belt on the revolving shaft was not obeying any order of the master and was of his own volition negligently adopting a dangerous rather than a simple and absolutely safe method. He was the alter ego the vice-principal, in sole charge of the plant, with authority to pursue any course of action or method he chose. The master should not be held liable for his negligence or his mistake in judgment in selecting an unsafe manner; and the fact that he or others had done the same thing did not relieve him from his responsibility for the results of his voluntary choice of the more dangerous manner. By walking twenty feet and giving the order to shut down the machinery, as he ought to have done, he could have replaced the belt in perfect safety. Smith v. Forrester-Nace Box Co., 193 Mo. 715; Doerr v. Brewing Ass'n, 176 Mo. 547; Trainer v. Mining Co., 243 Mo. 359; Dressie, Admr., v Railroad, 145 Mo.App. 163; Riegel v. Biscuit Co., 169 Mo.App. 513; Breashears v. Iron Works Co., 171 Mo.App. 507. (4) The court erred in not directing a verdict for the defendants, as the evidence conclusively showed that the shafting, coupling and set screws were so guarded that they were not dangerous to the deceased or any of the defendants' employees while engaged in the performance of their ordinary duties. At the time of his death the deceased was not engaged in an ordinary, but in an extraordinary and unusual duty. If the conveyer box on its supports was not a guard, still the shafting was so located that it was not dangerous to the deceased or other of the defendants' employees while any of them were engaged in the performance of their ordinary duties, and therefore the defendants were not required to guard it by section 7828, R. S. 1909. Lang v. Bolt & Nut Co., 131 Mo.App. 146; Strode v. Columbia Box Co., 124 Mo.App. 511; Strode v. Columbia Box Co., 250 Mo. 695; Simpson v. Witte Iron Works, 155 S.W. 813; Simpson v. Witte Iron Works, 249 Mo. 376; Austin v. Shoe Co., 176 Mo.App. 572; Saling v. American Chicle Co., 117 Mo.App. 374.
Earl M. Pirkey for respondent.
(1) In order for an appellate court to pass on the admissibility and character of evidence, the evidence in question even if real must be before the appellate court. Phelps v. Conqueror Zinc Co., 218 Mo. 581; Scott v. Railroad, 158 Mo.App. 625. (2) (a) To disqualify a witness on the ground that a party to the contract or cause of action is dead, the witness must both be interested and a party to the contract or cause of action with the deceased person. Campbell, Admr., v. Hayden, 164 Mo.App. 252; Investment Co. v. Lead Co., 251 Mo. 741. (b) Where a widow sues an individual for the death of her husband, the cause of action on trial did not accrue until after his death, and all witnesses to what was said and done before his death are competent. Entwistle v. Feighner, 60 Mo. 214. (c) Hearsay testimony carries no weight or probative force whatever, whether objected to or not. Childers v. Pickenpaugh, 219 Mo. 436. (3) (a) A foreman may recover in like manner as an ordinary servant, for injuries caused by the negligence of the master. Nichols v. Plate Glass Co., 126 Mo. 66. (b) If there are two ways for a servant to do an act, one more dangerous than the other, both of which are furnished by the master with the intention that the employee may use either, he is not negligent in choosing the more hazardous course. Hutchinson v. Safety Gate Co., 247 Mo. 116. (c) Even where a servant of his own free will chooses an unsafe way when a safer way is at hand, he can recover, unless the way he chose is so glaringly dangerous that no prudent person would have chosen it. Boehm v. General Electric Co., 179 Mo.App. 671; Rhea v. Railroad, 171 Mo.App. 178; Railroad v. Thompson, 199 F. 395; American Car and Fdry. Co. v. Ruckle, 200 F. 47. (d) The statute requires machinery to be guarded when it is so placed in a factory that its normal operation would injure any employee who should approach near enough to be caught by its force or subjected to its activity. Simpson v. Witte Iron Works Co., 249 Mo. 389.
At the time of the accident here involved, defendants, partners, owned and operated a mill for grinding grain of various kinds, manufacturing it into feed. Daniels, the husband of plaintiff, was night foreman. On the night of September 29, 1911, Daniels discovered that a belt had slipped from its pulley and he climbed over a shafting for the purpose of adjusting the belt, the machinery in operation and the shaft, pulley and belting moving at the time. He was accompanied by a laborer who carried a lighted lantern. This shafting was near the south wall of the building, about eighteen inches from it and about two feet above the floor. On the far side of it, toward the interior of the building, was a wooden grain conveyor some two or three feet from the shafting, and raised four or more feet above the floor. Daniels was in charge of the plant that night. The laborer was named Zeva. Daniels stood for awhile on the outside of the shafting. He then got between the shafting and the wall and after making three or four unsuccessful efforts to put the belt back on the revolving pulley, he was stepping over the shafting when a leg of his trousers was caught in a set screw in the moving shaft and he was whirled to his death.
The plaintiff, his widow, brought this action for damages resulting from this death, charging that the defendants had negligently failed to sufficiently light the establishment at and near the coupling and shafting and also had negligently failed to guard the set screws, which were in the coupling or shafting, and which extended such a distance from the surface of the coupling that there was probable danger of their catching the person and clothing of anyone at or near the coupling. The charge of negligence as to insufficient light was taken from the jury so that the cause proceeded on the assigned negligence in failing to guard the set screw in the shafting, it being claimed that failure to guard it was a violation of section 7828, Revised Statutes 1909, and that Daniels was caught by it while in the performance of the ordinary duties of his employment.
After a general denial, defendants pleaded contributory negligence in that Daniels was familiar with the premises; that he crawled under a guard provided by defendants over the machinery and appliances and had negligently placed his leg and body over a shaft while the same was revolving and negligently attempted to place on the pulley wheel attached to the shafting while it was in motion, the belting which had come off, without first stopping it, as it was his duty to do, as charged, and that he had negligently allowed his leg and trousers to come in contact with and be caught in the revolving shaft.
The answer further attacks section 7828, Revised Statutes 1909, of our State as unconstitutional. This latter defense is not open to our consideration, indeed is not insisted on here by learned counsel for appellants.
The guard referred to as one under which Daniels was alleged to have passed and which it is alleged was provided by the defendants over the machinery and appliances, is the grain conveyor we have referred to.
From a verdict in favor of plaintiff, defendants have duly perfected their appeal to this court.
There are four assignments of error made before us.
The first is to alleged error of the court in admitting, over defendants' objection, an exhibit consisting of a drawing made from a photograph not offered in evidence, it being charged that it did not appear by the evidence when the photograph was taken or when the drawing was made, nor that anyone was able to state that the drawing was an accurate representation of the coupling and set screws. Our court recently held in Lauff v. J. Kennard & Sons Carpet Co., 186 Mo.App. 123, 171 S.W. 986, that photographs, if properly identified, may be introduced in evidence. The mill at which this accident occurred caught fire and was burned down after the accident, but it appears that before that a photograph had been taken of that part of the interior that contained this shafting. While the photograph itself was neither produced nor accounted for on the trial of the case, what was claimed to be a sketch from that photograph of this shafting, showing its position and immediate surroundings, and the set screw, was in evidence and is the exhibit referred to. It was identified by witnesses as a fairly accurate representation of the locus in quo....
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