Head v. M. E. Leming Lumber Co.

• Decision Date: 12 March 1926
• Docket Number: No. 25173.,25173.
• Citation: 281 S.W. 441
• Parties: HEAD v. M. E. LEMING LUMBER CO.
• Court: Missouri Supreme Court

281 S.W. 441

HEAD v. M. E. LEMING LUMBER CO.

No. 25173.

Supreme Court of Missouri, Division No. 1.

March 12, 1926.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Action by Rosa B. Head against the M. E. Leming Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Ward, Reeves & Oliver, of Caruthersville, and Spralding & Dalton, of Cape Girardeau, for appellant.

Oliver & Oliver, of Cape Girardeau, for respondent.

RAGLAND, P. J.

This is an action brought by plaintiff for the death of her husband, George Head, who, as alleged, was negligently killed in defendant's sawmill. The cause of action is based upon section 6786, R. S. 1919, which requires shafting and machinery in all manufacturing establishments when so placed as to be dangerous to persons employed therein or thereabout, while engaged in their ordinary duties, to be safely and securely guarded when possible. The petition, in substance, states that plaintiff's husband, George Head, was employed by defendant in its said plant at the time he met his death in the capacity of oiler and cleaner; that said plant and machinery were operated by steam power, and on the ground floor thereof there was a line shaft around which a collar was fitted and held in place by two set screws, the heads of which protruded out from the collar about an inch and a half; that said line shaft, collar, and set screws were run and operated in connection with said machinery with great speed, and were unguarded at the time; that the said George Head, in the performance of his duties, was required to examine and inspect said machinery, to discover hot boxes, to oil same, and to clean up dust, trash, debris, and other waste matter in and about the mill; that in the performance of his said duties it was necessary for him to be and pass around and by said line shaft; that, while in the performance of his duties as such employé, and while working at and about said unguarded shaft and set screws, his clothing was caught in same, and his body thereupon carried rapidly around said revolving shaft with great force and violence, inflicting injuries which resulted in his immediate death; and that the deceased's injury and resulting death were caused by the negligent failure of the defendant to safely and securely guard said line shaft, set screws, and machinery. The prayer was for judgment for $10,000 damages.

The answer was a general denial, contributory negligence, and assumption of risk.

A brief outline of the facts:

At the time of his death Head, the deceased, was employed by defendant as an oiler at its sawmill. He had been so employed for a period of 15 days. His immediate predecessor as oiler was one Sullivan. Sullivan had worked as oiler continuously for 5 or 6 months. Prior to his being employed as oiler, Head had from time to time worked around the mill in other capacities, and had occasionally substituted for Sullivan. It was the duty of the oiler to oil the machinery, keep a lookout for "hot boxes," cool them with oil or water, if necessary, and remove the dust, trash, debris, and other waste matter as it accumulated in and about the mill. He was given no specific directions as to when to oil. It was "the business of the oiler to go over the machinery and fill the grease cups and oil the machinery when in his judgment it should be done."

Defendant's mill was housed in a two-story building. The mill proper was on the upper floor, while the driving machinery was on the ground floor. Of this latter a main shaft and a line shaft were featured in the evidence. Only the most general idea, however, can be gleaned from the record as to their relative positions, their settings, and surroundings. In describing these, the witnesses illustrated by referring to physical objects in the courtroom, and to a model made for that purpose. Without the aid of such illustrations their testimony is all but unintelligible. Notwithstanding, the general features of the situation are plain enough. The main shaft extended east and west, and rested upon concrete piers at a height of from two and three or four feet higher than the main shaft, one-half to three feet above the floor. Some and south of it, but paralleling it, there was a smaller shaft, referred to as the "line shaft." Portions of these shafts were within what some of the witnesses termed an "inclosure." The inclosure was formed principally by the heavy timbers and braces which constituted the supports of the mill structure. The barriers furnished by these supports were supplemented to some extent by boards nailed on them at places. As a means of entrance to the inclosure a gate was provided. There was no other way of getting in unless one climbed over the timbers or crawled under them. The dimensions of the space within the barriers just mentioned were four feet by eight, and presumably the shafts passed through the inclosure in the direction of the greater dimension.

On the shaft within the inclosure just described there were bearings to be oiled or cups to be filled with grease. There was also a conveyor trough through which sawdust from the mill was carried to the furnace. This trough extended through the inclosure at right angles with the main shaft, but much nearer the floor. It was necessary on occasions to clean up the dust and trash which accumulated on the floor. Near one of the bearings on the main shaft there was a set screw which projected out an inch or more, and which revolved with the shaft.

Sullivan was called as a witness for plaintiff. He testified that, while he was oiler, he oiled the bearings on the shafts within the inclosure, at least those on the main shaft, four times a day—in the morning before the mill started up, in the forenoon between 9 and 10 o'clock, at noon when the mill was shut down, and again about 3 o'clock in the afternoon; that even then some of the bearings occasionally "ran hot"; that he sometimes oiled the bearings on the main shaft from outside the inclosure, but at other times he went inside; that, when it was necessary to oil the bearings on the line shaft, he went Inside the inclosure, climbed up over the main shaft onto a timber, and walked back in reach of the shaft because there was no other practical way to do it; that the cleaning up of the dust from under and around the main shaft had to be done from four to six times a day and that the work of oiling and cleaning frequently brought him inside the inclosure and within a foot or a foot and a half of the set screw. He further testified that the mill was never shut down for him to oil or clean within the inclosure, not even when he reported to...