Fowler v. Santa Fe Elevator Co.

• Decision Date: 04 April 1910
• Citation: 143 Mo. App. 422,127 S.W. 616
• Parties: FOWLER v. SANTA FÉ ELEVATOR CO.
• Court: Missouri Court of Appeals

127 S.W. 616

143 Mo. App. 422

FOWLER v. SANTA FÉ ELEVATOR CO.

Kansas City Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 2, 1910.

1. NEGLIGENCE (§ 134) — ALLEGATIONS OF NEGLIGENCE — NECESSITY OF STRICT PROOF.

If an injury has resulted to a person from one of several causes for some of which defendant would be liable and for others not, plaintiff must show with reasonable certainty that the cause for which defendant is liable produced the result, since he must, to show an actionable cause against another, show with a reasonable degree of certainty that such cause exists.

2. MASTER AND SERVANT (§ 276) — DEATH OF SERVANT — ACTION — SUFFICIENCY OF EVIDENCE.

In an action for the death of a servant, evidence held not to show that he came to his death from slipping on a runway, and falling upon a revolving belt by reason of the absence of a handrail on the runway.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Emma Fowler against the Santa Fé Elevator Company. Judgment for plaintiff, and defendant appeals. Reversed.

A. F. Smith, Boyle & Howell, Thos. R. Morrow, Cyrus Crane, and James P. Gilmore, for appellant. Bird & Pope, for respondent.

ELLISON, J.

Plaintiff's husband was killed in the state of Kansas while engaged in the service of defendant elevator company in its elevator in that state. She charged his death to defendant's negligence, and brought this action to recover damages. She had judgment in the trial court for $6,000. Originally there were joined with this defendant the Santa Fé Grain Company and the Atchison, Topeka & Santa Fé Railroad Company, but the action was dismissed as to them. No one saw how deceased was killed, but his death occurred on the second floor of the elevator. On this floor there was a large belt operated from the second floor into an annex on the north, with a floor about 5 feet higher than the main one. The distance was 180 feet, and the belt was therefore 360 feet long. It is described as the upper and lower belt; that is, that part running north into the annex was called the upper, and that part returning was called the lower, belt. It was operated by a large pulley on the main floor which was revolved with great rapidity. The pulley was set between two upright timbers, one foot square and nearly four feet apart. The belt was three feet wide and pliable, so that by means of contrivances along its way as it went into the annex the edges were turned up in such manner as that it would hold grain. It (the upper portion) was therefore also called the carrying belt, and as it returned it was the lower or returning belt. Near the pulley over which the belt ran was a grain spout, with a "slide" for opening and closing. When the slide was pulled open grain would run out onto the rapidly moving upper belt and be carried into the annex, where it was discharged in a bin. A part of the daily duties of deceased was to open and close the spout, and he was therefore sometimes designated as the "spouter." The spout, belt, and pulley were a few feet above the floor, and the upper and lower portions of the belt near these were about 16 inches apart. In order to get to the spout, what was called a runway was constructed near the side and parallel with the belt, and with about the same slope towards the pulley. It was an inch or two higher than the lower belt, and about 15 inches lower than the upper one. It consisted of a single board, 13 or 14 feet long, 2 inches thick, and 10 inches wide. Any one wishing to open or close the spout would walk to the end of the runway, stoop over, and raise or lower the slide. The runway did not have a handrail, and it was made slick from use and the crushing under foot of particles of grain which would fall upon it from time to time. As already stated, no one saw deceased come to his death; but it is plaintiff's theory that he was on the runway in going to the spout, or at the spout, and slipped and fell between the upper and lower belt onto the latter, and was thus carried by it to the pulley, and crushed between it and the belt and by being revolved around so that different parts of his body struck nearby timbers. If he was at the spout, the upper belt would be a little below his knees. South of, and about 22 inches from the timbers supporting the pulley, and 7½ inches from the south side of...