Evans v. General Explosives Co.

• Decision Date: 18 March 1922
• Docket Number: No. 22510.,22510.
• Citation: 239 S.W. 487,293 Mo. 364
• Parties: EVANS v. GENERAL EXPLOSIVES CO.
• Court: Missouri Supreme Court

239 S.W. 487

293 Mo. 364

EVANS v. GENERAL EXPLOSIVES CO.

No. 22510.

Supreme Court of Missouri, Division No. 2.

March 18, 1922.

Motion for Rehearing Denied April 7, 1922.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Edwin L. Evans, by his next friend, against the General Explosives Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff's instruction No. 1, defendant's instruction No. 18, as modified and given by the court, and defendant's instruction No. 24, which the court refused, were as follows:

(1) The court instructs the jury that if you find and believe from the evidence in this case that Edwin L. Evans at the time this suit was commenced was a minor under the age of 21 years, and before bringing this suit, on application, his father D. G. Evans, was by the clerk of this court appointed his next friend for the purpose of bringing this suit, and that on the 3d day of July, 1919, the said Edwin L. Evans was in the employ of the defendant, General Explosives Company, and at the time of entering said employment the defendant knew, or by the exercise of ordinary care would have known, that the said Edwin L. Evans was a minor and unfamiliar with the machinery hereinafter described, and without knowledge of the dangers, if any, of working with the same, and that said defendant with said knowledge directed the said Edwin L. Evans to assist in the operation of a cotton mixer, which was being used by the said defendant in conducting its business of explosives making, and if you further find from the evidence that said cotton mixer on account of its construction and operation was a dangerous piece of machinery for persons to work with, in this, that it revolved very rapidly, and if a person's hands came in contact with the contents of said wringer when it was in operation there was danger of them being injured thereby, and that the defendant had knowledge of these facts, or by the exercise of ordinary care would have had knowledge of the same, and with such knowledge the defendant directed the said Edwin L. Evans to operate said mixer, and failed to give him any warning or instructions as to the danger of operating said wringer, and if you find the same was dangerous to operate, and that the said Edwin L. Evans, without knowledge of said dangers, undertook to steady the said wringer by holding his hands inside of the bowl thereof, and that when his hands became hot from the contact therewith picked up a chisel and undertook to use the same for the purpose of steadying the said wringer, and if you find that at the said time the said Edwin L. Evans was exercising the ordinary degree of care reasonably expected of one of his age and experience and capacity, and that while so undertaking to steady said mixer his arm came in contact with the contents thereof, and on account thereof his said arm was torn from his body, and he lost the same, then you should find a verdict in favor of the plaintiff. (Given.)

(18) The court instructs the jury that if you find and believe from the evidence in this case that the injuries received by plaintiff, if any, were caused by the carelessness and negligence of the plaintiff directly contributing thereto in any degree, then your verdict must be for the defendant. (Given.)

(24) The court instructs the jury that, if you find and believe from the evidence in this case that the use of the chisel by plaintiff, in connection with the operation of the wringer at the time and place in question, was the proximate cause of the injuries received by plaintiff, then your verdict must be for the defendant. (Refused.)

M. V. Kannally, of Chicago, and H. S. Miller, of Joplin, for appellant.

Howard Gray, of Carthage, for respondent.

WALKER, J.

This is an action for personal injuries received by plaintiff while in the employ of the defendant. Upon a trial to a jury in the circuit court of Jasper county, where the injury was sustained and the action brought, a verdict was rendered in plaintiff's favor for $20,000. From the judgment rendered thereon, the defendant appeals.

The defendant is an incorporated company, engaged in the manufacture of explosives at Carl Junction, Jasper county. The plaintiff, at the time he was injured, was a boy between 17 and 18 years of age, and was working at a power wringer, which, as designated by defendant, is a centrifugal extractor for wringing clothes, but is used by the defendant in wringing the water from cotton in preparing the same for use in the manufacture of powder. It is described as a heavy load, high-speed machine, which, when in operation, is under great strain. It consists of a basket and an outside shell. The latter, with its legs and bearing base, is one solid casting, which, when installed, is bolted to the floor. The basket is intended to revolve inside of the shell; it has a east iron bottom, with perforated brass mesh on its sides; inside of same there is screen of about 100 mesh to the inch to retain the cotton, and at the same time permit the forcing out of the water. When the machine is in operation, the basket makes from 900 to 1,400 revolutions per minute, with an average surface speed of 7,000 feet per minute. There were no knives or cogs in the wringer. When the pulp, consisting of cotton and water, was put into the basket, it was a mushy substance, which was completely dried after from two to four minutes' operation of the wringer. There was a cover for the basket intended as a safeguard, but it was not in use when the plaintiff was hurt. The accident occurred July 3, 1919. Prior to that date plaintiff and one Woods had been performing general work around the plant for defendant, but had not been employed at the wringer; those who had been thus employed had quit. On the morning of the injury, as plaintiff testifies, he and Woods, after engaging in other work for about an hour, were directed by defendant's superintendent to operate the wringer. This is denied by the latter, but plaintiff's testimony in regard thereto was corroborated, and the jury gave it credence rather than the statement of the superintendent. Thus directed, Woods and the plaintiff began to operate the wringer. When it was started by the plaintiff, it commenced to wobble, and he used his fingers to steady it. The heat of the basket, caused by its rapid revolutions, burned his fingers, and he picked up a chisel, and in the effort to use it to steady the basket the suction caused by its rapid revolutions jerked his right arm entirely off of his body at the shoulder.

I. The manner in which the defendant has presented this case complies in no wise with the statute (section 1511, R. S. 1919) and cur rule 15 (228 S. W. viii). Instead of a fair and concise statement of facts without reiteration, statements of law, or argument, a labored discussion, based upon the defendant's interpretation of the evidence, is submitted; instead of a statement in numerical order of the points ruled on with citations of authorities thereunder, as the statute and our rule requires, we are furnished with a repetition of the preliminary argument upon which the defendant relies for a reversal, followed by references to numerous cases, which are quoted from liberally to show by analogy that the evidence did not authorize the reference of this case to the jury, together with other matters of, assignment which are presented in the same manner. All of this is classified by defendant as "Points and Authorities"; it is nothing more than an argument, long drawn out. This manner of presenting a case would authorize, if the rule be enforced, a restriction of the court's consideration to the record proper.

The purpose of the statute (sec. 1480, R. S. 1919) authorizing appellate courts to make and promulgate rules regulating this and other phases of procedure, was not simply one of form nor to lessen the court's labor in prescribing a plain and easy course to be pursued, but for the appellant's benefit as well. The clear and succinct presentation of an issue cannot but aid in its proper determination, thus redounding to the benefit of the litigant. A disregard, therefore, of the statute and our rule has rendered a review of this case unnecessarily laborious. It has been made, however, instead of disposing of the appeal upon the record proper, that the appellant's assignments of error may receive such consideration as will prevent its suffering vicariously.

II. The contention that an instruction should have been given in the nature of a demurrer to the plaintiff's testimony is based primarily upon the assumption that there was not sufficient evidence to authorize the submission of the case to the jury. It will suffice to say that there was evidence pro and con as to the nature of plaintiff's employment by the defendant, or, more particularly, whether he had been directed by defendant's superintendent to operate the wringer at the time he was injured. Other assignments alleging errors in the refusal of the trial court to give the demurrer are that plaintiff was warned to keep his hands out of the basket when the wringer was in operation; that he had worked at the wringer, and was familiar with it; that the wobbling of the wringer when the power was applied was due to plaintiff's negligence in not distributing the cotton uniformly in the basket. There was testimony introduced by the defendant which, if unchallenged, tended to support these contentions; but evidence directly to the contrary was adduced on the part of the plaintiff.

In passing upon the demurrer it became the duty of the trial court to make every inference of fact in plaintiff's favor that the jury might make with any degree of propriety. In so doing, the trial court was not at liberty to make inferences of fact in favor of the defendant to countervail either presumptions of law or inferences of fact in favor of the plaintiff. Troll v. Drayage Co., 254 Mo. loc. cit. 337, 162 S....