Dowling v. Gerard B. Allen & Co.

• Citation: 6 Mo.App. 195
• Parties: PATRICK DOWLING, Appellant, v. GERARD B. ALLEN & COMPANY, Respondent.
• Decision Date: 06 November 1878
• Court: Court of Appeal of Missouri (US)

6 Mo.App. 195

PATRICK DOWLING, Appellant,

v.GERARD B. ALLEN & COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 6, 1878.

1. Where dangerous machinery is so placed that the danger is hidden, so that to an inexperienced person the machinery may appear safe, and an inexperienced employee, who had no warning of the danger, is injured by such machinery while in the regular course of his business, he is not necessarily precluded from recovering against his employer on the ground of contributory negligence.

2. Where the language of a witness, though ambiguous, is fairly susceptible of an interpretation which makes out a primâ facie case for the plaintiff, it is error to take the case from the jury.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

FISHER & ROWELL, for appellant: Negligence.-- Combs v. Cordage Co., 102 Mass. 572; Whalen v. Church, 62 Mo. 326; Conroy v. Vulcan Iron-Works, 62 Mo. 35; Keegan v. Kavanaugh, 62 Mo. 233; Dale v. Railroad Co., 63 Mo. 455; Cook v. Railroad Co., 63 Mo. 397; O'Flaherty v. Railroad Co., 45 Mo. 70; Pattison v. Railroad Co., 76 Pa. St. 389; Steiner v. Moran, 2 Mo. App. 47; Lynds v. Stoneware Co., 4 Mo. App. 586; Mauermann v. Siermerts, 3 Mo. App. 605; Stoddard v. Railroad Co., 65 Mo. 514.

MARTIN & LACKLAND, for respondent: Negligence of master.-- Gibson v. Railroad Co., 46 Mo. 163; Keegan v. Kavanaugh, 62 Mo. 230; Nolan v. Shickle, 3 Mo. App. 300. Contributory negligence.-- McGowan v. Railroad Co., 61 Mo. 528; Langan v. Railroad Co., 5 Mo. App. 311. Negligence of fellow-workmen.-- Marshall v. Skinker, 63 Mo. 306.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages for injuries done to plaintiff whilst in the employ of defendant, a corporation carrying on a foundry in St. Louis.

At the close of plaintiff's case, defendant offered an instruction in the nature of a demurrer to the evidence, which was granted. Plaintiff then took a nonsuit; and the court having overruled a motion to set the nonsuit aside, plaintiff appeals.

There was evidence to show the following state of facts: Plaintiff, a boy seventeen years of age, at the request of his father, was hired by defendant. At the time he was thus hired, he had no experience in foundry business or with machinery, and of this fact Fisher, the foreman and general superintendent of defendant's foundry, who hired him, was informed at the time. During the first two months of his service with defendant, plaintiff was employed in running errands and in sweeping out. During the last month, he was employed in the machine-shop and in the yard, where a turn-table was being constructed under the charge of one King, a fellow-servant of plaintiff. The foreman of defendant, who had hired plaintiff, told plaintiff to go with King and do whatever he told him, and plaintiff did so. Plaintiff's father, who was also employed in the foundry, remarked the boy one day working under King's directions at a lathe, and told King that that was dangerous work for the boy, as he was “green.” To this King replied that the boy was better and sharper than some of the men, and no more was said at the time. The boy himself told King that he did not like being employed to help him, and that King had better get some one to take his place; but King persuaded him to remain at the turn-table.

The turn-table was inside the foundry. It was over thirty feet in diameter. Running east from this table, a little south from the centre of it, was a shaft about twelve feet long and about six inches in diameter. This shaft was covered, except for a space of three or three and a half feet nearest the turn-table. The lower part of the shaft was about ten inches above the floor, and it could be stepped over at the part where it was not protected; and the men employed in the foundry were in the habit of stepping over it when going to and fro. At the end nearest to the turn-table the shaft had a collar about an inch and a half thick, and from this collar projected a set-screw about two inches high. The plaintiff says in his direct examination: “The collar was a close fit; I don't exactly know how large the set-screw was. The shaft was between eight and ten inches high. I could step over it easily enough. The shaft revolved rapidly. The set-screw could not be seen when the shaft was revolving. I did not see the set-screw before I was injured.” And further on in his direct examination he says: “I had never taken particular notice of that set-screw before I was injured.”

At the date of the accident, plaintiff had been working about three weeks at the turn-table with King. King directed him to stop the engine. This was done by pulling a string to shut off the steam. The engine was at the other side of the turn-table. It could be reached in two ways. The shorter way was to cross the revolving shaft. King told the boy to hurry, and he took the shorter way. In stepping over the shaft, the leg of his trousers was caught by the set-screw. His leg was drawn under the shaft, and so badly broken as to render immediate amputation necessary to save his life.

The question whether there is any evidence here from which the jury might have found the defendant liable to plaintiff in this action, is the one presented for our determination by this record.

It is universally...