Dowling v. Allen

• Decision Date: 17 November 1890
• Citation: 102 Mo. 213,14 S.W. 751
• Parties: DOWLING v. ALLEN et al.
• Court: Missouri Supreme Court

14 S.W. 751

102 Mo. 213

DOWLING v. ALLEN et al.

Supreme Court of Missouri.

November 17, 1890.

MASTER AND SERVANT — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

Plaintiff, a 17-year-old boy working in defendants' machine-shop, was ordered to stop the engine. To reach it, he intended to step over a rapidly revolving shaft at a point often used by defendants' other employes for that purpose. Before reaching that point, his pants were caught by a set-screw in the shaft, and his leg was crushed. The evidence showed that, at the point where the injury occurred, the space was too narrow to admit of plaintiff's passage. Held, that the evidence justified the inference that plaintiff was going by the shaft, rather than over it, when injured; and that it was proper to instruct that if plaintiff, "without any negligence on his part," by reason of his youth or inexperience, or reliance on the directions given him, failed to appreciate the danger in passing "over or by" said shaft, and was injured in consequence, the defendants will be responsible for their negligence in not properly guarding the shaft.

Appeal from St. Louis circuit court; W. W. EDWARDS, Judge.

This is an action for damages for personal injuries sustained by plaintiff while in defendants' employ, by reason of alleged negligence of the latter. The defense was a denial and a plea of plaintiff's contributory negligence, which the reply put in issue. The injury complained of occurred in 1872. The present action was begun in 1875. Plaintiff was obliged to take a non-suit under the rulings of the circuit court at the first trial, but that judgment was reversed and the cause remanded on appeal to the St. Louis court of appeals, (Dowling v. Allen, 6 Mo. App. 195,) whose judgment to that effect was approved by this court in an opinion reported in 74 Mo. 13. The cause was then retried in 1882 in St. Louis county, to which a change of venue had been taken. The result was a verdict for plaintiff for $10,000. An appeal was taken therefrom to this court, where that judgment was reversed and the cause remanded in a decision reported in 88 Mo. 293. In 1886, a new trial was had before the circuit court of St. Louis county, with the aid of a jury. A verdict and judgment were then rendered for plaintiff for $12,000. After the usual motions the present appeal was taken. The evidence tended to show that plaintiff was an employe in the foundry of defendant, and, at the time of the accident, 17 years of age. He was inexperienced in the business, of which fact the superintendent who engaged him was aware. For some months he ran errands and did similar light work, but afterwards was put in the machine-shop, and in the yard where a turn-table for a bridge was being built under direction of King, another employe. His father told King it was a dangerous place for the boy. The foreman, who had engaged plaintiff, directed him to obey the orders of King. On the day of the accident, plaintiff had been working the ratchet handle on the turn-table. There was an engine near by, which ran the machinery in the shop. At noon, the steam was shut off from it, and the hands stopped for dinner. There was, close to the turn-table, a revolving shaft, (connected with the machinery,) on which was a set-screw in a collar to keep the shaft in place. The latter was some 12 feet long, 6 inches in diameter, and about 10 inches above the floor. It was covered, except for a space of about 3 feet at the end nearest the turn-table. The collar at that end of the shaft was about an inch and a half thick, and the set-screw about 2 inches high above it. When the shaft was running it made some 250 revolutions a minute, and the set-screw could not then be seen, owing to the rapidity of its motion. The shaft, at the end where the set-screw was, bore on a supporting pole, and further along the shaft was a pulley wheel. It is not necessary to pursue this description further into details, as the situation of the various parts of the machinery material to the case will be easily understood from the accompanying cut:

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

THE FOREGOING CUT REPRESENTS THE SITUATION AS DESCRIBED IN DEFENDANTS' TESTIMONY.

1. Is the place where young Dowling was working when he started to turn off the engine

2. Is where King and Cook were standing.

3. Is the collar and set-screw.

4. Is the engine he started to stop.

On the day of the accident, when the noon hour came, King told the plaintiff to stop the engine. This could easily be done by any one, and plaintiff had done it often before. He proceeded to execute the order, and was told to "hurry up." He had a choice of routes to reach the engine, but took that leading by way of the shaft referred to. He testified that there was a space of some two and a half feet (often used by other men) as a passage-way over the shaft next to the supporting post, and that he was going that way; that he had never observed the set-screw before, nor been warned of it, and it had never been pointed out to him; that as he was about to go over the shaft the set-screw caught his pants, and drew his leg under the shaft, resulting in injuries which cost him that member.

There was a sharp conflict in the evidence on several points, one of which will be specially noted. Defendants' testimony was to the effect that there were only some six inches of open space next to the supporting pole of the shaft in question on the side towards the set-screw, and it tended to show that a passage over the shaft at that point could not be made. There was abundant evidence from which the jury might have inferred contributory negligence on the part of the plaintiff, or might have found that he was exercising ordinary care. They found the latter as the fact.

The evidence at the last trial was in every substantial particular the same as that given at the former one, reported in 88 Mo. 293. No exceptions were taken to the rulings upon the testimony. No instructions were refused by the court. Those given were as follows: For plaintiff: "(1) The jury are instructed that, if they find for plaintiff, they will assess his damages at such an amount as in their judgment will compensate him for the pain and suffering he sustained by reason of his injury, together with such a sum as will compensate him for the permanent injury they find he has sustained by reason of the loss of his leg, not exceeding in all the sum of $20,000." No. 2 appears fully in the opinion of the court. "(3) The court instructs the jury that although they may find from the evidence that the set-screw and collar attached to the shaft were visible, and the danger in passing over the same was apparent to a person of mature years, or one accustomed to the use of such machinery, yet if the jury further find from the evidence that by reason of the youth and inexperience of plaintiff he was not aware of...