Daniels v. Goeke

• Decision Date: 04 May 1915
• Docket Number: No. 14004.,14004.
• Citation: 191 Mo. App. 1,176 S.W. 301
• Parties: DANIELS v. GOEKE et al.
• Court: Missouri Court of Appeals

176 S.W. 301

191 Mo. App. 1

DANIELS v. GOEKE et al.

No. 14004.

St. Louis Court of Appeals, Missouri.

May 4, 1915.

Rehearing Denied May 18, 1915.

Appeal from St. Louis Circuit Court; Thos. C. Hennings, Judge.

Action by Amelia Daniels against Frederick W. Goeke and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Ellerbe & Brokaw, of St. Louis, for appellants. Earl M. Pirkey, of St. Louis, for respondent.

REYNOLDS, P. J.

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 29th, 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 18 inches from it and about 2 feet above the floor. On the far side of it, toward the interior of the building, was a wooden grain conveyor some 2 or 3 feet from the shafting, and raised four or five 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 by 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. Oil: court recently held in Lauff v. J. Kennard & Sons Carpet Co., 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. We see no error in the admission of this in evidence, as the witnesses testifying from it were able to give the court and jury an understandable description of the machinery involved and its situation. In itself it was no evidence and was not so used, but served the purpose of making the verbal descriptions more intelligible. It is not claimed that it was in any respect misleading. We see no error in the action of the court in its admission in evidence.

The second assignment of error is to the action of the court in admitting a conversation between a witness who was a deputy factory inspector and a superintendent for defendants, the latter since dying. This inspector testified that he had called the attention of the superintendent to this set screw and told him it should be covered or countersunk, and that this superintendent told him he would have it remedied. This conversation took place some three weeks before this accident.

Learned counsel for appellants rely upon Carroll v. United Rys. Co., 157 Mo. App. 247, 137 S. W. 303; Leaven v. Southern Ry. Co., 171 Mo. App. 24, 153 S. W. 500, and Taylor v. George, 176 Mo. App. 215, 161 S. W. 1187, in support of their objection, claiming that under the provisions of section 6354, Revised Statutes 1909, as interpreted by these decisions, the superintendent being dead, this deputy factory inspector was an incompetent witness. Section 6354 and its predecessors, as found in the various revisions of our statute, have been frequently before our Supreme Court and the various Courts of Appeals for consideration and construction. The last case in which this section was construed by our Supreme Court, and to which our attention has been called, is that of Ham & Ham Lead & Zinc Co. v. Catherine Lead Co., 251 Mo. 721, 158 S. W. 369. There our Supreme Court has said that in order to render a witness incompetent he must both be interested and a party to the contract or cause of action which was made with the deceased person. Nothing whatever contrary to this is to be found in any of the cases above cited from the appellate courts. While it is true that in all of them, as stated very fully in Carroll v. United Rys. Co., supra, it is said that the reason of the rule underlying the statute is that when the mouth of one is closed by death, the other should not be heard to speak, it is distinctly held in all of them, and in every case of which we have any notice or knowledge in our state, that this rule applies to the parties to the contract or to the action; broadened, it is true, to take in their agents and attorneys, but always limiting it, as the statute does, to the parties, or the agent and attorney of the parties, to the contract or cause of action. Our lawmakers have never seen proper to extend this statute so as to close the mouth of a witness to conversations and transactions with another, that other being dead, when the witness himself, or the dead one, is neither a party to the contract...