Holmes v. Bradenbaugh

• Decision Date: 18 February 1903
• Citation: 72 S.W. 550,172 Mo. 53
• Parties: HOLMES v. BRADENBAUGH.
• Court: Missouri Supreme Court

72 S.W. 550

172 Mo. 53

HOLMES v. BRADENBAUGH.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

INJURY TO SERVANT—PERSONAL INJURIES-FAILURE TO FURNISH SAFE APPLIANCES—EVIDENCE.

1. Evidence in an action by a servant for personal injuries held to show that plaintiff's injury was not the result of the master's failure to furnish safe appliances, but of plaintiff's negligent management thereof.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Joseph R. Holmes against J. O. Bradenbaugh. From an order setting aside a nonsuit, defendant appeals. Reversed.

This is an action for $5,000 damages for personal injuries received by the plaintiff while in the employ of the defendant, in his elevator, in Kansas City. The plaintiff suffered a nonsuit, which the court afterwards set aside, and from which order the defendant appealed.

The allegations of the petition as to the cause of the injury and the negligence charged are as follows: That on November 1, 1899, and at all times hereinafter mentioned, the plaintiff was in the employ of and working for said defendant in and about said Crescent Elevator. That on November 1, 1899, he was working on the bin floor of said elevator, and the spiral conveyor became disarranged and did not work properly, so that it was necessary to disconnect it with the power from the engine. In order to do this, the plaintiff attempted to throw the belt off of the pulleys connecting the said conveyor with the shafts and belting running to the engine, and to tie up the belt with a rope provided for that purpose, to keep the belt out of reach of the machinery. This work had to be done in a very narrow space just over the shaft, while the shaft was revolving with great speed. While attempting to tie up this belt, the belt or rope being used by the plaintiff was caught by the revolving shaft or set screw thereon, and the plaintiff was drawn into the machinery, and his hands caught by the revolving shaft and held until the machinery was stopped. That the plaintiff's left hand was torn across the back each time the set screw revolved, and the ends of the fingers on his right hand were mashed off, and the plaintiff was in great danger of losing his life. The plaintiff further alleges that his injury was due to the negligence, carelessness, and failure on the part of the defendant to provide proper and safe machinery for the doing of the work assigned to plaintiff, and the failure on the part of defendant to keep said machinery in repair. That the defendant used a spiral conveyor to distribute the wheat in the several bins, and allowed the spiral and the machinery running the same to become rusty and out of repair, so that it worked with difficulty and frequently caught, necessitating the throwing of the belt off of the pulleys connecting said spiral conveyor with the power running the same; that only a stick was provided with which to throw off the said belt, and so confined was the space provided that when the belt was thrown it was necessary to tie up the belt out of the way of the machinery, and for this purpose a rope was provided, all of which made said machinery dangerous and difficult to operate. That defendant was negligent in not providing a belt conveyor, which could have been stopped, without danger to the operator, by means of a lever, and the said defendant was further negligent in not stopping the engine and machinery when said spiral conveyor had to be disconnected, and the defendant was further negligent in not providing a larger space and safer place within which the operator might work while tying up said belt. The plaintiff further alleges that the defendant received notice prior to the accident, and knew, that said machinery was defective and unsafe, and the same was unknown to the plaintiff. That the plaintiff was not negligent or careless while doing said work at the time he was injured, but was careful and prudent in the use of said machinery and in the doing of said work. The plaintiff further alleges that at all times herein mentioned he was performing the duties required of him, and for which he had been employed by the defendant.

The answer is a general denial, with special pleas of contributory negligence and assumption of risk.

The case made by the plaintiff was this: For over two years before the accident the plaintiff had been in the employ of the defendant. The plaintiff is a nephew of the defendant's wife, and at the time of the accident he was 29 years old. It was the plaintiff's duty to weigh the grain in and out of the elevator, to see that it was put in the proper bin, to look after the machinery on the upper floors, and, if anything went wrong, to shut it off, if he could, and fix it, and, if he could not do so, then to notify Ed. Hunt, the superintendent.

Without entering into a detailed description of the machinery, it is enough now to say that the grain is carried to the top of the elevator, and then there are spiral conveyors which carry it to the several bins. A conveyor is a kind of a trough, made usually of iron, on the inside of which there is a spiral screw or auger, which, by revolving, carries the grain along the inside of the conveyor. The outside of the conveyor is stationary, and has drop flaps over each bin that may be opened so as to permit the grain to fall into the proper bins below. The spiral screw or auger on the inside of the conveyor is operated by means of a belt and pulley, that is, a belt working around a revolving shaft. There were two such conveyors in this elevator, on the east and west sides thereof respectively. Where the two ends of the shaft are coupled together, there is a knuckle that goes around the shaft, and a set screw that fastens the knuckle, which is three-fourths of an inch in diameter and stands up about an inch from the shaft. At first, and up to about 18 months before this accident, there were two friction band pulleys on the shaft, one to control each conveyor, and when it was desired to stop the conveyor, or, rather, the spiral screw inside of the conveyor, without stopping the shaft, it was only necessary to pull the lever, which pulled the pulley out of gear, and permitted the shaft to revolve without revolving the pulley that operated the conveyor; and to start the conveyor again, it was only necessary to throw the lever back again. This part of the machinery had gotten out of repair and had been taken out. For about 18 months before the accident, the only method provided for stopping a conveyor without stopping the whole machinery was a stick or pole and a piece of rope. By means of the stick the belt was shoved off of the drum or wheel on the shaft, and thus left hanging slack around the shaft. To prevent it from coming in contact with the other belt that operated the other conveyor, and thereby being injured or burnt by the friction of the other rapidly moving belt, the rope was used to tie the first-named belt up to a railing that ran above the belt and alongside of the walk on which the person who was attending to the putting of the grain into the proper bins could go to reach and operate the drop flaps aforesaid. The plaintiff saw these appliances every day while he worked at the elevator. It does not appear from the evidence, however, that he ever tried to throw the belt off of the shaft and stop the conveyor until two days before the accident, when the east conveyor got out of fix, and he called down to the superintendent Hunt and told him about it, and asked him to stop the machinery and come up and fix it. Hunt told him to throw the belt off from the shaft (this is not technically correct, but expresses the idea well enough) and fix it himself. The plaintiff replied that he could not do it. Hunt answered that he would have to do it; that it was a part of his duty. Thereupon the plaintiff did so, and tied up the belt and fixed the conveyor, and threw the belt back again. To do this he used the stick and the rope aforesaid. On the day of the accident Hunt told the plaintiff that as soon as the grain was put in the bins he wanted him to throw the belt that operated the west conveyor, as it was not working right, and he (Hunt) wanted to work on it. Before the grain was loaded, however, the plaintiff heard a great noise about the west conveyor, and supposed the spiral screw on the inside of the conveyor had fallen down and was working against the bottom of the conveyor,...