Helfenstein v. Medart

• Citation: 36 S.W. 863,136 Mo. 595
• Parties: Helfenstein v. Medart et al., Appellants
• Decision Date: 23 December 1896
• Court: Missouri Supreme Court

36 S.W. 863

136 Mo. 595

Helfenstein v. Medart et al., Appellants

Supreme Court of Missouri, Second Division

December 23, 1896

Rehearing Denied 136 Mo. 595 at 619; 37 Mo. 829.

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

Nathan Frank, C. W. Bates, Seymour D. Thompson, and C. P. & J. D Johnson for appellants.

(1) At the time deceased was injured he was not discharging to the defendants any duty he owed them under his employment. On the contrary, he was willfully neglecting such duty, and in doing so voluntarily placed himself in a perilous position, from which the injury resulted; consequently the defendants are not liable. The rule upon this point is that the master is not liable to his servant for injuries received by the latter in consequence of his having left his post of duty and voluntarily placed himself in a position of danger. Schaub v. Railroad, 106 Mo. 74; Francis v. Railroad, 110 Mo. 387, and cases cited. (2) Even if deceased did not leave his post of duty, still the bursting of the stone with the resulting injury to him was a risk or incident of the deceased's employment, which he voluntarily assumed, and defendants are not liable. Schaub v. Railroad, 106 Mo. 74; Bohn v. Railroad, 106 Mo. 429; Alcorn v. Railroad, 108 Mo. 81. (3) The deceased was guilty of negligence which directly contributed to his death. For this reason, also, defendants are not liable. Smith v. Railroad, 113 Mo. 76; Alcorn v. Railroad, 108 Mo. 81; Ring v. Railroad, 112 Mo. 220. (4) There was no evidence tending to show that the stone which burst and injured deceased was, at the time, being run at an unsafe speed. Without such evidence there was no proof that the stone burst by reason of the negligence of the defendants. In the absence of such proof defendants are not liable. (5) If it be held, however, that there was evidence tending to show that the stone was being run at a dangerous rate of speed, still defendants are not liable; for the deceased himself determined and fixed the rate of speed, and could, if he had seen fit, have changed to a slower and maybe a safer speed. So that if the stone exploded by reason of the speed at which it was being revolved, it was by reason of the act of the deceased and not of the defendants, and the latter are not liable. Evans v. Railroad, 62 Mo. 49; Boettger v. Scherpe, etc., Co., 124 Mo. 87; Nicholds v. Crystal Plate Glass Co., 27 S.W. 516; 28 S.W. 991. (6) The testimony of the witness Flad which was the only testimony on the point, did not amount to evidence of the fact that defendants ran the stone in question at a dangerous or negligent speed; because first, he was not an expert, consequently not competent to testify on the subject, and second, his statements were expressions of opinion and not evidence of the fact. Turner v. Haar, 114 Mo. 335. (7) Besides, the trial court erred in permitting the witness Flad to testify over defendants' objections and exceptions to what, in his opinion, was a safe and what was not a safe speed at which grindstones could be run; because, first, it appeared that the witness was not qualified as an expert to testify on the point, and, second, the opinions he gave were merely efforts to supply a proof of facts, not otherwise proven, by use of opinion evidence. Turner v. Haar, 114 Mo. 335; Boettger v. Scherpe, etc., Co., 124 Mo. 87; Eubanks v. City, 88 Mo. 650; Koons v. Railroad, 65 Mo. 592; Riley v. Sparks, 52 Mo.App. 572; Gates v. Railroad, 44 Mo.App. 488; Rogers on Exp. Test., pp. 2, 6, and 34; Lawson on Exp. and Op. Ev., p. 130. Plaintiff's instructions based on that testimony were improperly given. Harding v. Wright, 119 Mo. 1-9.

J. Hugo Grimm and Rassieur & Schnurmacher for respondent.

(1) The questions of defendants' negligence and deceased's contributory negligence were properly left to the jury. There was abundant evidence of negligence on the part of defendants in operating the stones at an unsafe rate of speed. (2) Deceased was not violating any rule made for his protection and if he did violate a rule in removing his overalls before the whistle blew, that would not prevent a recovery unless by violating the rule he contributed to the injury. But this question was submitted to the jury. Again, there was no evidence that he had any notice of such a rule as it is now claimed he violated. Francis v. Railroad, 110 Mo. 387. (3) Deceased did not assume the risk of injury resulting from the negligence of the defendants; this is especially true as he knew nothing of their negligence or of the danger resulting therefrom. Porter v. Railroad, 71 Mo. 72; Waldhier v. Railroad, 87 Mo. 46. (4) The instructions given in behalf of plaintiff were all proper declarations of law, were based upon the evidence, and were in such form as has been approved by this court. Gibson v. Railroad, 46 Mo. 167; Porter v. Railroad, 71 Mo. 72; O'Mellia v. Railroad, 115 Mo. 211; Waldhier v. Railroad, 87 Mo. 46; Hamilton v. Railroad, 108 Mo. 201; Swadley v. Railroad, 118 Mo. 268; Settle v. Railroad, 127 Mo. 341; McGowan v. Railroad, 61 Mo. 528; Keighan v. Kavanaugh, 62 Mo. 231; Malone v. Morton, 84 Mo. 439; Stephens v. Railroad, 86 Mo. 229. (5) Mr. Flad, a graduate of the scientific department of Washington University, a mechanical engineer by profession, who had investigated and studied the question of speed at which stones can be run, testified as to the maximum safe speed. The objection that he was not competent to testify as an expert is without merit. Rogers on Exp. Test., pp. 45-47; Lawson on Ev., p. 10, rule 6a.

Division Two: Burgess, J. Gantt, P. J., concurs. Sherwood, J., dissents. In Banc: Brace, C. J., Barclay and Gantt, JJ., concurring with Burgess, J.; Sherwood, Robinson, and Macfarlane, JJ., dissenting.

OPINION

In Banc.

Burgess J.

The widow of William Helfenstein brought this suit in the circuit court of the city of St. Louis to recover damages for the death of her husband. The venue was subsequently changed to the circuit court of the county of St. Louis, where a trial was had to a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $ 4,500. Defendants bring the case to this court by appeal for review.

At the time of the accident and for eight months prior thereto deceased was in the employ of defendants as a grinder in their factory in the city of St. Louis, and as such it was his duty to polish iron or steel castings by holding them in contact with a grinding-stone revolved by means of a pulley and belting operated by steam power.

The petition contains the following averments:

"But plaintiff states that defendants wholly neglecting and disregarding their duty in that behalf furnished said Helfenstein with a grinding-stone on said eighth day of February, 1893, of an unusually large circumference and connected the same by belting with a pulley of large circumference which had theretofore been used in connection with a considerably smaller grinding stone; that by connecting this larger stone with said large pulley the stone was revolved at a very high and dangerous rate of speed, and that defendants knew, or by the exercise of ordinary care might have known, that by connecting said grinding-stone with said pulley as aforesaid and causing said stone to revolve at the high rate of speed aforesaid, the said stone would fly to pieces and injure any person who happened to be near it.

"And plaintiff states that on February 8, 1893, while said Helfenstein was in the employ of defendants as aforesaid, and was standing in front of the grindingstone, at which he had been working until a short time before, said grinding-stone suddenly flew to pieces, on account of the high speed at which it was revolving, and the parts thereof, and also an iron splasher which was fastened in front of it were violently hurled against said William Helfenstein, striking him in the right hip and wounding and injuring him."

The answer, after denying all allegations of negligence contained in the petition, alleged that the bursting of the stone was one of the dangers assumed by deceased in his employment; that at the time it burst, deceased, knowing the dangers incident to his action, had voluntarily placed himself in front of the stone, while not in the discharge of his duty, and was by reason thereof guilty of contributory negligence.

Plaintiff replied to the answer and denied all new matter contained therein.

At the time of the accident defendants conducted a large factory in said city for the manufacture of all sizes of iron pulleys. The pulleys manufactured by them consist of a cast iron hub with radiating spokes, with a flat circular rim of wrought iron or steel attached to the ends of the spokes. A part of the process of manufacture was to grind down the edges and faces of the rims of the pulleys by means of grindstones, mounted in machines constructed for that especial purpose. There were six or seven of said machines in use in defendants' factory, in the grinding department, which department was under the supervision of a foreman, and it and other departments were under the supervision of a superintendent.

At the time of the injury deceased was about twenty-six years of age, and up to the time he entered the service of defendants he had been a whitewasher. For about a month after he began work he was called a "handy" man, and was then put to work grinding stones. No instructions were given him, but the man working nearest to him in the same business gave him advice and assistance. He was still working on small pulleys at which new hands were put to grinding. He did not know the speed of the grindstone, nor did the foreman know the limit of speed at which they might be safely run.

Each grinding machine consisted of...