Imboden v. St. Louis-San Francisco

• Decision Date: 06 March 1925
• Docket Number: No. 3713.,3713.
• Parties: IMBODEN v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

272 S.W. 1092

IMBODEN v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3713.

Springfield Court of Appeals. Missouri.

March 6, 1925.

Rehearing Denied May 18, 1925.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by It. W. Imboden against the St. Louis-San Francisco Railway Company. Judgment for defendant. From an order granting a new trial, defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

J. M. Massingill, of New Madrid, and McKay & Peal, of Caruthersville, for respondent.

BRADLEY, J.

This is an action for personal injury. A verdict was returned for defendant. Plaintiff filed motion for new trial, and a new trial was granted, and defendant appealed from the order granting a new trial.

Plaintiff was injured while working at a pin grease machine in defendant's supply house in Chaffee, Mo., and alleges that his injury was caused by a defective machine. The answer is a general denial, and an averment that plaintiff's injury was caused by his own negligence, and a plea of assumption of risk. The reply is a general denial.

The trial court granted a new trial on the theory that error had been committed in giving defendant's instruction H. Defendant contends that its instruction was proper, and, if not, that plaintiff, under the facts, is not entitled to recover, that its demurrer should have been sustained, and therefore a new trial should, in no event, have been granted.

It is conceded that at the time plaintiff was injured he was engaged in work which brings his cause under the federal Employers' Liability Act. U. S. Comp. Stat. § 8657 et seq. The pin grease machine consisted of two cylinders attached to a board about 6 feet long and about 12 inches wide, which board was fastened upright to the wall in the supply house. The upper of these cylinders was about 18 inches in length, and the lower about 15 inches in length, and each was about 10 inches in diameter. There was a space of about 5 inches between the two cylinders. Defendant gives a fair statement as to description of machine and manner of operation, and we in substance adopt it.

The machine in question was operated by air, having two cylinders, viz. the top one being the air chamber, in which the compressed air was let in at the top of the cylinder and forced down the piston that operated in this cylinder, like the rod of a popgun, pushing the piston down through an opening at the bottom. In the bottom was a spring, and when the piston was pushing down, and the air pressure from above released, the spring would then push the piston back up. The second chamber or cylinder was immediately beneath the air chamber cylinder, and was a receptable for hard grease, having an opening at the bottom about the size of a silver dollar, so that, when the piston from the air cylinder was forced down through the grease cylinder, it compressed and pushed out of this opening the hard grease in a stick like a candle. These sticks of grease were pushed through a certain length and cut off, and, being hard grease, they remained intact, and were used in grease cups on the engines and locomotives. The cylinders had about a 5-inch diameter chamber, and each was about 10 inches in depth. The air cylinder, in which was the piston aforesaid, was operated by means of compressed air, which came from an air tank through an inch pipe. In this pipe, just before it entered the air cylinder, was a threeway cock operated by a lever. When the lever was horizontal, the cock was closed and the air shut off; but, when the air was shut off, the cock left an opening from the air cylinder so that the air could escape. Being a threeway cock, if you raised the lever up, it opened the cock so the air ran from the pipe into the upper part of the cylinder, or, if lever was lowered, it opened the cock so the air flowed from the pipe into the air cylinders. The case went to the jury on the theory that the cock leaked air when the lever was horizontal; that is, when it was supposed to be shut off it leaked air, and the air leaked into the air chamber and caused the piston to go down, when the operator of the machine had not so intended, and had not placed the lever for that purpose. Plaintiff's petition alleges that, while he had placed the lever in a horizontal position so as to shut the air off, the air leaked into the cock, and caused the piston to go down into the grease chamber at a time when he was putting grease into the chamber with his right hand, preparatory to mould grease sticks, and said piston cut off his thumb and forefinger of his right hand.

We will first dispose of defendant's contention that plaintiff under the facts cannot recover. Defendant contends that there is nothing in the record which can be considered as evidence tending to prove that air leaked into the upper cylinder and caused the piston to descend unexpectedly as claimed by plaintiff. Defendant urges that plaintiff's theory, and evidence offered in support thereof, are contrary to the physical facts, and contends that the piston descended and injured plaintiff because he raised or lowered the lever with his left hand while feeding in the grease with his right hand.

Plaintiff was injured November 3, 1922. He testified that there was no notch or slot to indicate when the lever was at the proper place or point to cut off the air, and that no matter how set there was a leak. He said that he could hear the air escaping. Plaintiff testified in effect that while he was putting the grease into the lower cylinder with the lever set to cut off the air the piston descended without warning and caught his right hand. He had been operating the machine about a month, and that was the first time that the piston had so descended while he was operating the machine. Albert Knox, a witness for plaintiff, and who, operated the machine after plaintiff Was injured, testified that in about two weeks after plaintiff was injured the piston suddenly, rapidly, and with great force, came down when the lever was horizontal, and without any manipulation of the lever. This witness also testified as to the leak. On cross-examination, witness Knox said:

"I am telling the jury that I could hear it leaking, and one time it leaked enough to push that piston down. I don't know what caused it to fall, unless the air accumulated in the top of this. The air would leak in there just like it would leak in a barrel that had the bung out, and it leaked full, with power enough to push the piston down, I suppose, spring and all. I am saying to the jury that just leaking of air into the cylinder pushed the...