Kneemiller v. American Car & Foundry Co.

• Decision Date: 11 January 1927
• Docket Number: No. 19377.,19377.
• Citation: 291 S.W. 506
• Court: Missouri Court of Appeals
• Parties: KNEEMILLER v. AMERICAN CAR & FOUNDRY CO.

291 S.W. 506

KNEEMILLER v. AMERICAN CAR & FOUNDRY CO.

No. 19377.

St. Louis Court of Appeals. Missouri.

January 11, 1927.

Rehearing Denied February 21, 1927.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by William Kneemiller against the American Car & Foundry Company. Judgment for plaintiff, and from an order sustaining defendant's motion for a new trial, plaintiff appeals. Reversed and remanded, with directions.

Douglass, Inman & Horsefield, of St. Louis, for appellant.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (G. A. Oath, of New York City, of counsel), for respondent.

NIPPER, J.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff (who is appellant here) while he was operating, or aiding in the operation of, an electric reamer, used for the purpose of countersinking holes in the steel frame of a box car. Plaintiff recovered judgment, and the court sustained defendant's motion for a new trial on the eighth ground set out in said motion, namely, that the court erred in overruling defendant's demurrer to the evidence, offered at the close of all the evidence in the case. From the order sustaining defendant's motion for new trial, plaintiff appealed to this court.

The allegations in the petition are that, on or about the 24th day of March, 1924, plaintiff was working in defendant's plant as a helper to a reamer, and was engaged in reaming holes in the bottom brace of a box car; that the said reaming machine was operated. by electricity, and stopped and started by means of a lever which was operated by the reamer, so that when the reamer raised said lever the electricity stopped, and the reamer ceased to revolve; that, while plaintiff was working, and while he was holding to the reamer, the man whom he was assisting, and who was operating the said reamer, pressed the lever for the purpose of stopping the revolutions of the reamer; but that said reamer failed to stop, and continued to revolve, catching in the iron plate, swinging around, and knocking the plaintiff down and injuring him.

The answer pleaded contributory negligence. The reply was a general denial. At the time plaintiff was injured, and on the date mentioned in the petition, he was assisting the operator of a reamer. This reamer weighed about 85 pounds, stood three and one-half feet high, and had two handles, one about two and one-half feet long, and the other one and one-half feet long, and was operated by electricity. It was put in motion by means of a trigger on the short handle. The short handle was held and controlled by the operator, whose name was Henning, and he operated the trigger which turned the electricity on and off. Plaintiff held the long handle, and had nothing to do with the starting or stopping of the electricity. Plaintiff and Henning had just finished sinking a hole about one and one-fourth inches in diameter when Henning released the trigger on the short handle of the reamer for the purpose of stopping it so that it might be lifted out of the hole. The reamer, for some unknown reason, failed to stop, and the bit caught in the hole, and swung the reamer against plaintiff, and knocked him down. The reamer was apparently in good condition prior to this event, and had always stopped when the trigger was released.

Henning testified, as a witness for defendant, that the reamer would not continue to run after the power was shut off if the machine was in perfect order; that he had had trouble with this particular reamer before because it would not stop after the trigger was released; that he took it to the shop, and had it repaired; that a reamer in perfect condition will, after the power is released, continue "running idle" for a few minutes. On cross-examination, he stated that the reamer would not continue to run after the power was shut off if it was in perfect condition.

Then the...