Hill v. East St. Louis Cotton Oil Company

• Decision Date: 10 July 1919
• Citation: 214 S.W. 419,202 Mo.App. 478
• Parties: W. H. HILL, Respondent, v. EAST ST. LOUIS COTTON OIL COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

214 S.W. 419

202 Mo.App. 478

W. H. HILL, Respondent, v. EAST ST. LOUIS COTTON OIL COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Springfield

July 10, 1919

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

202 Mo.App. 478 at 488.

Original Opinion of June 19, 1919, Reported at: 202 Mo.App. 478.

Case reversed and remanded.

OPINION

ON MOTION FOR REHEARING.

STURGIS P. J.

Our attention is called to the case of Slinkard v. Lamb Construction Company just published in 212 S.W. 61. That case in effect holds that when a plaintiff is guilty of an act contributing to his injury which all fair minded men must say is negligent, then the fact that the plaintiff was actuated by a desire to have his owner or his master's property and acted in such emergency cannot excuse his contributory negligence. The Court there said:

"The evidence before us does not show that the plaintiff was, in endeavoring to stop the team, undertaking something which, in the judgment of an ordinarily careful and prudent man, could be held to have been liable to cause him a serious injury. We are all the more of this opinion in view of the fact that in the present case the plaintiff is not a mere volunteer, but was under a duty by reason of his employment to take the necessary steps, commensurate with safety to himself, to control the horses."

If we could here say that plaintiff's act in thrusting his gloved hand in this narrow space next to the revolving saws and grabbing at burning cotton dropping therein was one "which in the judgment of an ordinarily care and prudent man could be held (not) to have been liable to cause him a serious injury" then the case is one for the jury. We all agree that such is the law but are not agreed that under the facts in this record plaintiff's said act is conclusively negligent. The majority of the court so holds but it may be, as is urged, that we do not fully understand the mechanism of the cotton gin and the physical facts connected with plaintiff's injury. The evidence is not as full and satisfactory as it might be as to the inherent and necessary danger attending plaintiff's action. There may be evidence on another trial taking that question to the jury and a case should not be reversed without remanding unless the evidence has been fully presented and the court is fully convinced that the facts are necessarily such that plaintiff cannot be allowed to recover....