Haynie v. Hammond Packing Company
| Decision Date | 24 June 1907 |
| Citation | 103 S.W. 581,126 Mo.App. 88 |
| Parties | GEORGE W. HAYNIE, Plaintiff in Error, v. HAMMOND PACKING COMPANY, Defendant in Error |
| Court | Kansas Court of Appeals |
Error to Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.
AFFIRMED.
Judgment affirmed.
Mytton Parkinson & Crow for plaintiff in error.
(1) Mulvane occupied the position of master for the reason that he was assigned by the master to perform a duty owed by the master to plaintiff, its servant, namely, keeping the elevator or the place where plaintiff was required to perform his duty in a reasonable safe condition. Weldon v Railway, 93 Mo.App. 674; Zellers v. Water and Light Co., 92 Mo.App. 119; Jones v. Railway, 178 Mo 544. (2) The fact that the master was at the machinery that controlled the elevator with grease on his hands and clothing, and the fact that the elevator had been operated all day without danger, and the fact that the elevator fell suddenly and rapidly and that it could only have fallen from the grease being on the bull wheel, makes a prima-facie case for plaintiff, and shifts the burden to defendant to explain. The witness without contradiction stated that the elevator would not have fallen except from grease being on the bull wheel. No person was near the bull wheel except Mulvane, who occupied the position of master, and he had the grease on his hands and clothing. This is a catastrophe in the mere statement of which an implication of negligence necessarily follows. The thing itself speaks. Res ipsa loquitur. Blanton v. Dold, 109 Mo. 74; Schuler v. Railway, 87 Mo.App. 619; Gallaher v. Illuminating Co., 72 Mo.App. 576; Sackewitz v. Mfg. Co., 78 Mo.App. 144.
Vinton Pike for defendant in error.
(1) The argument is made here that as the elevator fell and the only cause conjectured is grease on the bull wheel, grease must have got there through the negligence of defendant. As there is no evidence that defendant put oil on the wheel, plaintiff argues that it must be presumed it put oil there because it must be presumed oil was there. That is to say, it must be inferred that oil was on the bull wheel from the fact that the elevator fell; and from that inference another inference must be drawn that the master carelessly put the oil on the wheel. An inference from an inference is not allowable. Glick v. Railway Co., 57 Mo.App. 104; Yarnell v. Railway, 113 Mo. 370; State v. Lackland, 136 Mo. 26; Chemical Co. v. Lackawanna Line, 78 Mo.App. 312; Bank v. Railway, 98 Mo.App. 335. (2) But the abstract does not show that plaintiff even stated a cause of action. The petition, it says, alleged "a number of acts of negligence;" then follows those relied on at the trial. Negligence, however, presupposes a duty and none is shown or hinted at. No relation between plaintiff and defendant; no connection of defendant with the elevator; no duty to protect plaintiff as a stranger, invited guest or servant.
Action by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the latter. At the conclusion of the evidence introduced by plaintiff, the court instructed the jury to return a verdict for defendant, and the cause is here on appeal of plaintiff.
The injury occurred while plaintiff was engaged in operating an elevator maintained by defendant in a meat packing establishment conducted by it in the city of St. Joseph. The vehicle had been running all day carrying loads of freight and, late in the afternoon, plaintiff observed a defect in the cable by which the car was suspended. He, at once notified defendant, and a machinist employed in the establishment repaired the cable without delay, after which plaintiff ran the car to the sixth floor and attempted to stop it there, but from some cause, it descended with great rapidity to the bottom of the shaft, severely injuring him.
Several acts of negligence are alleged in the petition, but the evidence introduced failed entirely to show the existence of any defect in the elevator or in any of the appliances connected with its operation. The safety catches did not act but, on cross-examination, plaintiff admitted they were not designed to operate except in case the cable broke or became slack and, as the cable did not break and remained taut during the descent of the car, the condition did not obtain under which they should have been put in operation. The machinery by which the car was operated was situated at the top of the shaft and it was there the machinist repaired the cable. The car was stopped or held in place by means of a brake and wheel. The brake was operated from the car and when the operator desired to stop, he applied the power in such manner that the brakeshoe was firmly pressed against the periphery of the wheel. Plaintiff testified that the machinist worked in proximity to the wheel while he was repairing the cable, and that his hands and clothing had become greased from working around and with other machinery in the building. The only ground on which plaintiff is endeavoring to hold defendant liable for his injury...
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