Huhn v. Ruprecht

• Decision Date: 18 February 1928
• Docket Number: 26628
• Citation: 2 S.W.2d 760
• Parties: HUHN v. RUPRECHT
• Court: Missouri Supreme Court

2 S.W.2d 760

HUHN v. RUPRECHT

No. 26628

Supreme Court of Missouri, Second Division

February 18, 1928

Kelley, Starke & Hassett and Franklin Miller, all of St Louis, for appellant.

Mark D Eagleton and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

OPINION

BLAIR, J.

This is an action in damages for personal injuries received by respondent while in the employ of appellant. The jury assessed such damages at the sum of $ 13,500. Respondent entered a remittitur in the sum of $ 5,000, rather than submit to a new trial. Thereupon judgment for respondent was entered in the sum of $ 8,500. From that judgment an appeal was granted to this court.

Appellant was engaged in the heavy hauling business. Respondent was one of four employees of appellant assigned to the task of unloading a heavy metal press at a manufacturing plant in the city of St. Louis. The press weighed about 12 tons. It had been shipped upon a railroad flat car, which was left standing on the track alongside the loading platform. The press was located near the west end of the car. The plan adopted was to jack up one end of the press and put skids under that end and then to jack up the other end and repeat the operation. Then the press would have been rolled from the platform of the flat car to the loading platform.

The east end had been jacked up and the crew started to work on the west end. Respondent and one Joseph Kastner operated one jack and Lon Nelson, who was the foreman, and Richard Kemmis operated the other jack. The two jacks in use were 15-ton jacks and were alike. A similar jack, not shown to have been one of those in use at the time, was brought before the court below, and that jack was exhibited to this court when the case was argued. The jack stands vertically upon a substantial base and is more than 2 feet in height. An upright steel stem or walking beam, about 2 inches square, moves up and down in a steel housing. When lowered, the head of the stem is just at the top of the housing. The stem also has a catch or foot at its lower end to be used in raising objects under which the head of the jack cannot be inserted. One side of the stem has teeth or cogs about an inch apart. A boot or sleeve 10 or 12 inches long, ending in a knuckle with three cogs similar to and designed to work into the cogs in the stem, is attached to the housing about 15 or 18 inches from the bottom of the jack. This sleeve or boot moves up and down on a pin operating in a slot about twice as long as the diameter of the pin. This slot enables the sleeve to be pushed toward the stem, so that the cogs on the knuckle will engage the cogs of the stem, or to be pulled back in order to disengage the knuckle. A handle or crowbar, upon which to apply hand power, may be inserted in the sleeve. The pin is only about 2 inches from the end of the knuckle. Thus it is readily apparent that the power applied to the handle is tremendously multiplied at the knuckle. At the top of the housing a heavy metal dog or ratchet is so placed that it will move back out of the way when a cog of the stem pushes against it from below and will drop back under the cog as soon as the stem of the jack has been raised far enough. This enables the operator of the jack to hold the load being raised while the knuckle is disengaged and pulled back and the handle is raised and the knuckle is again engaged to repeat the lifting operation.

The cogs on the stem and on the knuckle are about 2 inches wide and about a half inch thick at the base. They extend out about the same distance and are about a quarter of an inch thick at the outer edge. This edge is rounded so as to facilitate engagement between the cogs of the stem and the knuckle. The lower sides of the cogs on the stem are nearly at right angles with the stem, while the upper sides slope downward somewhat.

The evidence shows that the two jacks had been placed under the west end of the press. The space between the press and the end of the flat car was not wide enough to permit both men operating either jack to stand firmly on the platform. Respondent was at the far or upper end of the crowbar which was being used to operate the jack. This crowbar was made of steel, was 51/2 to 6 feet long and was over an inch thick at one end and less than an inch in thickness at the other end. Respondent had one foot on the coupler of the flat car and the other on the platform. In order to have unity of effort, the foreman would give a signal so that all four men could bear down on the jack handles at the same time. He gave this signal and respondent and Kastner bore down on their crowbar. For some reason the knuckle did not engage the cogs of the stem of the jack firmly and slipped out. This permitted the crowbar to fall and caused respondent and Kastner to be precipitated to the ground.

The testimony offered by respondent tended to show that the cogs on the stem and knuckle of the jack, which he and Kastner were using, were worn and that such worn condition permitted the knuckle to slip out after it was properly engaged with the cogs of the stem and thus respondent was caused to fall; that the cogs were covered with grease so that it was difficult to see their worn condition: that it was the duty of appellant or his foreman to inspect the jack.

On the other hand, the testimony offered by appellant tended to prove that the jack had only been in use 2 years, while the ordinary life of a jack of that kind is 10 or 12 years; that the jacks were inspected before they were sent out to be used on this particular job; that an inspection after the accident showed the jack to be in good condition and that the cogs were not worn; that the jack was returned to appellant's warehouse and used regularly thereafter without trouble; that, if the knuckle was once properly engaged, it could not slip out. The theory of appellant was that respondent and Kastner did not push the knuckle in far enough to engage the cogs on the stem properly and that, if the cogs had been so engaged, the accident could not have happened. In other words, the defense was that the accident happened from the negligence of respondent and Kastner and not through any fault of the jack.

I.We think a case was made for the consideration of the jury upon the assignment of negligence based upon the alleged worn condition of the cogs or teeth of the jack. Respondent's evidence tended to show that the cogs of the knuckle became properly engaged with the cogs of the stem; that, had this not been true, he and Kastner would not have been able to put any weight at all on the crowbar because it would have fallen of its own weight. If the cogs on the knuckle and those on the stem were properly engaged, as respondent's evidence tended to prove, this was a circumstance tending to prove that the cogs were worn, for otherwise the knuckle could not have slipped out. We think the jury was authorized to find that the jack was not in a reasonably safe condition for use and was defective and dangerous on account of the worn condition of the cogs and that respondent was injured as a direct result there of. Settle v. St. Louis & San Francisco Ry. Co., 127 Mo. 336, loc. cit. 341, 30 S.W. 125, 48 Am. St. Rep. 633; Dakan v. Chase & Son Mercantile Co., 197 Mo. 238, loc. cit. 254, 94 S.W. 944.

Appellant contends that there is no evidence as to what caused the handle to fall and hence no proof that the alleged worn condition of the cogs was the proximate cause of respondent's injuries. But this argument cannot be accepted in view of the testimony of foreman Nelson and other witnesses that the worn cogs would permit the knuckle to jump out when power was applied to the handle notwithstanding the cogs were properly engaged. The jury had the right to believe this and to disbelieve appellant's proof tending to show that the cogs were not worn and that the knuckle could not jump out after the power was applied, if the knuckle had been properly engaged. There was substantial proof from which the jury was authorized to find that the accident and resulting injuries were due to the worn condition of the cogs rather than to the failure of respondent and Kastner to engage the cogs of the knuckle and the stem of the jack properly before placing their weight upon the handle.

The finding that the worn condition of the cogs was the proximate cause of respondent's injuries was therefore not based on speculation or conjecture. The cases cited by appellant announce and apply the unquestioned rule that the verdict cannot be based upon speculation or conjecture. Such cases recognize the rule that, where the negligence of defendant as the cause of the injury may be found as a reasonable inference from the facts and circumstances in evidence, such finding is...