Johnson v. Ambursen Hydraulic Const. Co.

• Decision Date: 30 January 1915
• Docket Number: No. 1372.,1372.
• Citation: 173 S.W. 1081
• Parties: JOHNSON v. AMBURSEN HYDRAULIC CONST. CO.
• Court: Missouri Court of Appeals

173 S.W. 1081

JOHNSON v. AMBURSEN HYDRAULIC CONST. CO.

No. 1372.

Springfield Court of Appeals. Missouri.

January 30, 1915.

Rehearing Denied February 16, 1915.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Err Johnson against the Ambursen Hydraulic Construction Company. Judgment for plaintiff for $7,500, and defendant appeals. Affirmed.

Lyon & Swarts and Dwight D. Currie, all of St. Louis, and Mann, Todd & Mann, of Springfield, for appellant. Watson & Page, of Springfield, and Moore & Aubrey, of Ozark, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment against defendant for $7,500 on account of personal injuries alleged to have been sustained by him while in the employ of the defendant. Plaintiff in the original petition sought to recover damages on the charge that defendant negligently and carelessly failed to cover certain machinery, consisting of cogwheels and shafts on a boat used on White river in the construction of a dam several miles up the river from Forsyth in Taney county, Mo. The suit was brought against several defendants. A first amended petition was filed against three defendants, not necessary to be discussed. A second amended petition was filed consisting of two counts; one of the defendants named in the original petition and in the first amended petition being dropped. The first count charged negligence in failing to securely guard certain machinery. The second count sought recovery on the common-law liability of defendants in failing to furnish plaintiff a reasonably safe place in which to work, requiring him to perform duties at a place near the cogwheels where a hole in the floor of the boat, called a "scuttle hole," was left open with no covering, alleging that, owing to the position the plaintiff was required to assume in performing his duties by reason of the scuttle hole being left open, he was subjected to unnecessary risk and hazard amounting to negligence on the part of his master. The third amended petition was filed against this defendant (appellant) and one other; the first count thereof going to the failure to securely guard the cogwheels, and the second count proceeding on the common-law liability of the defendant for failure to furnish plaintiff a reasonably safe place in which to do his work. At the conclusion of the evidence, the plaintiff dismissed his suit as to all the defendants except the Ambursen Hydraulic Construction Company, and also dismissed as to the first count of his third amended petition. The judgment therefore is based on the second count of the third amended petition, wherein the charge of negligence is that defendant negligently and carelessly failed and neglected to provide a covering for the scuttle or pit on the inside of the boat on which covering plaintiff might have stood in safety while engaged in oiling bearings on the shaft; that he was required to stand on the inside of the boat astride the scuttle hole or pit, and, by reason of being so compelled to stand astride said scuttle or pit, his clothing and a rain coat which he was wearing at the time was caused to come in dangerous nearness to the cogwheels aforesaid, and the said coat was, by reason of the position in which he was required to stand while so engaged in oiling said shaft bearings, caught by the cogwheels aforesaid, and the plaintiff was thereby injured. As to his injuries, the plaintiff alleged, and the uncontroverted evidence shows, that his left arm was caught between the cogwheels that engaged each other and ground off near where the arm joins the shoulder. The defendant brings its appeal to this court, charging numerous errors committed by the trial court which will be noticed in the course of the opinion.

The facts are that respondent at the time of his injury was a man about 21 years of age and had been working for a number of months in the construction of the White river dam near Forsyth, and that defendant was engaged in building this dam, and that in this work several hundred men were employed. There was used in connection with the work two river boats, designated "A" and "B," which were identical in size and construction. These boats were propelled by gasoline engines located near the front end of the boats. The power was transmitted from the engine to the stern wheel of the boat by shafts and cogwheels. In its mechanism there were two cogwheels about two feet in diameter, one located above the other and engaging each other. They were about nine inches from the side of the boat, and a shaft extended from the upper cogwheel through the side wall of the boat, and on the outer end of this shaft was a sprocket wheel over which a chain ran back to the stern of the boat, operating the wheel or sprocket. The side wall of the boat was about three feet high, and outside the wall was a bearing on an axle which required oiling at intervals of every few hours. On the inside of the boat on the floor, and about a foot in front of the cogwheels, was a hole cut in the false bottom of the boat, called a "scuttle." This scuttle was about three feet long and two feet wide, and from the false bottom to the bottom of the boat was about eight inches, and on the day of the accident this space was full of water. Along the side of the scuttle next to the boat wall was a board or timber about two inches in width. A number of photographs were introduced in evidence and are brought here for our examination, two of which we have selected as sufficiently disclosing the situation:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The first picture shows the two cogwheels, and right in front of them the scuttle hole. A shaft running through the top cogwheel continues on through the side of the boat to the outside on which there is fastened a small sprocket wheel. This sprocket wheel is shown in the second picture — the smallest wheel there shown, or the one nearest the observer. This sprocket wheel had to be oiled at a place made therefor, by reaching out over the side of the boat and placing the oil can so the oil would go in the oil hole or oil container. It was necessary for plaintiff, in performing this task, to stand with his left foot on the false floor of the boat and the other over against the side of the boat on the two-inch timber, and in this position to lean forward and out over the edge of the boat with the oil can. The evidence shows that a person oiling the sprocket wheel must necessarily hold to the upright piece shown in the first picture — the post — with one hand, and oil with the other, which would throw his body in a diagonal position with reference to the cogwheels, and not in a position squarely facing them.

Other facts will appear in the discussion of the alleged errors.

Appellant insists that the court erred in refusing to give its instruction in the nature of a demurrer to the evidence: First, because there was no evidence to show that defendant was in charge of the work in which he was engaged, or that it was the master of the plaintiff. The evidence does show that plaintiff had been working on and about the dam for some eight months; that during that time one W. E. Maxson had general charge of the work, and plaintiff and other employés were paid their wages every two weeks by checks signed Ambursen Hydraulic Construction Company by W. E. Maxson; that one of the boats had the name of the defendant on it; that the checks were cashed in the usual way; that they were received at the office maintained at the dam, and the same Mr. Maxson had charge of that office; that so far as the payees were concerned, as is shown by this record, they never had any trouble in getting their wages on the checks so signed. It further appears in the record that plaintiff filed an application before the trial, in which it was alleged that there was a contract entered into between the defendant herein and some of the other construction companies, by which contract the defendant was employed to construct the dam across the river, and that defendant had issued checks to a number of its employés, naming them, and asked that they be produced. The defendant, in reply to the order made by the court on it to produce this contract and these checks, excused its noncompliance with the order, not on the ground that such a contract had never been entered into by it or that it had never issued any such checks, but skillfully attempted to avoid the nonproduction of the same by saying that it had made diligent search for the contract, but that it could not find the same in its possession. The statement, as to the contract, that it had searched for it, is sufficient to admit that such a contract was in existence; otherwise, why did defendant go to the trouble of making a diligent search for it? It would have been much easier and far less evasive to have answered that no such contract ever existed; that fact was in defendant's knowledge. Nor does defendant deny that the checks were issued with its name signed thereon, or that it ever paid out any of its funds, but answers that such checks, if they were in existence, had gone into the possession and were under the control of a company in the state of New York. It was easily within the defendant's power to have shown without equivocation that it was not in charge of the work and that Maxson had no authority to sign its name to checks given to men engaged in this work. Besides, the fact that defendant's name did appear on checks which were paid is some evidence that the party issuing them had authority to do so, and that they were paid to employés of the payor. Evidence that defendant's name was on the checks which were given and cashed by the men working on the job was competent to show that such checks were given to the defendant's servants, and that they were acting in the course of their employment at the time. Fleishman v. Polar Wave Ice & Fuel Co., 148 Mo. App. 117, 127 S. W. 660.

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