Kuhn v. Lusk

• Decision Date: 02 March 1920
• Citation: 219 S.W. 638,281 Mo. 324
• Parties: PAUL KUHN v. JAMES W. LUSK, Receiver of ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

219 S.W. 638

281 Mo. 324

PAUL KUHN v. JAMES W. LUSK, Receiver of ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

March 2, 1920

Appeal from Barton Circuit Court. -- Hon. B. G. Thurman, Judge.

Reversed and remanded.

W. F Evans and Mann, Todd & Mann for appellant.

(1) At common law the master is not required to guard his machinery but could leave all parts of the machinery unguarded and incur no legal liability on that account. Cole v. Lead Co., 240 Mo. 404; Czernicke v. Ehrlick, 212 Mo 386; Lore v. Manufacturing Co., 160 Mo. 608; Blair v. Heibel, 103 Mo.App. 621; Gleason v Smith, 172 Mass. 50. (2) The respondent cannot avail himself in this action of the benefits of the statute regarding guards for dangerous machinery, to-wit, Sec. 7828, R. S. 1909: (a) Because the petition neither counts on the statute or brings the case within the terms thereof, but simply counts on the negligence of the appellant, "in failing to exercise ordinary care to furnish plaintiff a reasonably safe place to work, in that defendant failed to exercise ordinary care to properly house or shield the gearing or cogwheels to said motor." There is no allegation in the petition in the language of the statute or otherwise that the gearing was so placed as to be dangerous to persons employed thereabout while engaged in their ordinary duties, or that it was possible to guard it so as to prevent the injury. R. S. 1909, sec. 7828. (b) Because respondent, as his petition clearly indicates, founded his action in this regard upon the failure of the appellant to furnish him a reasonably safe place to work, in that it failed to house or shield the gearing. Respondent further introduced his testimony upon this theory over the objection of appellant and in drafting his instructions respondent relied solely on the common law liability and did not instruct under any theory covered by the statute. Respondent is bound by the theory upon which he not only brought but tried his case and submitted it to the jury. Degonia v. Railway, 224 Mo. 588; Brunswick v. Insurance Co., 213 S.W. 46; Hoff v. Transit Co., 213 Mo. 470; Bray v. Seligman, 75 Mo. 40; Williams v. Loban, 206 Mo. 407; St. Louis v. Right, 210 Mo. 502; Brick Co. v. Railway, 213 Mo. 727; Williams v. Railroad, 233 Mo. 676; Lalapie v. Saddlery Co., 193 Mo. 13. (c) Because the appellant herein is the receiver of a railroad company and the provisions of Art. 6, Chap. 67, R. S. 1909, of which said Section 7828 is a part, was not intended to effect or govern railroads, and if undertaken to be so construed as to apply to railroads then said section as well as that article is unconstitutional, as has already been so declared by this court. Williams v. Railroad, 233 Mo. 666; Mo. Constitution, Art. 4, Sec. 28. (3) Instructions number 1 and number 2 are erroneous. They submit two grounds of negligence which the jury might consider in determining the question of defendant's liability. There is no evidence in the record that the boxings and babbitt bearings were old, defective and loosened, and if there were testimony that they were old, defective and loosened or if the wheels did not mesh true with each other so that when said machinery was in motion there was a lateral or wabbling movement of the gearing and a vibration of the frame of the motor and bearing of the shafting, then there is no evidence in the record that any of these things directly or in any manner caused plaintiff's sleeve to get caught in the gear or that they contributed in any way to his injury. The mere fact that such alleged condition of the bearings and gear existed did not entitle respondent to recover. In order that he should recover, his evidence must prove or tend to prove that these conditions were the proximate cause of his injury. In other words, except for the existence of these alleged defects his sleeve would not have been caught and he would have received no injury. Trigg v. Lumber Co., 187 Mo. 234; Doerr v. Brewing Assn., 176 Mo. 556; Thompson v. Railroad, 140 Mo. 135; Stepp v. Railroad, 85 Mo. 233; Stanley v. Railroad, 114 Mo. 624; Henry v. Railroad, 76 Mo. 293; Jackson v. Elevator Co., 209 Mo. 506; Goransson v. Mfg. Co., 16 Mo. 307; McGee v. Railroad, 214 Mo. 543.

Sizer & Gardner for respondent.

(1) This action is not bottomed on our statute requiring dangerous machinery to be housed. Sec. 7828. Since the enactment of that statute in 1891, a statutory duty exists upon manufacturer to house all machinery covered by this statute, and a failure to do so is negligence per se. This statute has been held not to apply to railroads; whether rightly so or not, we do not say. Williams v. Railroad, 233 Mo. 666. But in the absence of such statute, a duty exists by the master towards his servant, and this is what has been designated his common-law duty. The statute covers only such machinery as is mentioned by it, while the common law covers all machinery the same as it covers any other appliance furnished by the master. Machinery as an appliance of the master, finds no exception at common law, for the same rule applies to it that applies to tools and other appliances. The loose statements by our courts do not change the common law or modify its strictness in the least, and the common law obtains in all its completeness today, notwithstanding such expression by our courts. We do not contend that there is such duty as is imposed by the statute at common law, but only the duty to use ordinary care. If machinery is dangerous and the exercise of ordinary care requires it to be housed in order to make it, or the place, reasonably safe, then the master is as in duty bound to house it at common law as he is by statute; and a failure to house under such circumstances is negligence equally as culpable as a violation of the statute. Czernicke v. Ehrlick, 212 Mo. 386. This duty of the master at common law is horn-book law, and is elementary. Letanovsky v. Shoe Co., 157 Mo.App. 120; Quinn v. Electric Laundry Co., 155 Cal. 500, 17 Ann. Cas. 1100; Skelton v. Lumber Co., 140 Cal. 511; Buchel v. Gray, 115 Cal. 421; Carlin v. Kennedy, 94 Minn. 141; Greenan v. Eggeling, 30 Pa. S.Ct. 253; Cargill v. Towell Sup. Co., 185 Pa. St. 269; Bartholemew v. Kemmerer, 21 Pa. St. 277; Flynn v. Prince Co., 198 Mass. 224, 17 L. R. A. (N. S.) 568; Kirwan v. Lithographic Co., 197 N.Y. 413, 27 L. R. A. (N. S.) 972; Wilson v. Williamantic Linen Co., 50 Conn. 533, 74 Am. Rep. 653; Hustis v. Bannister Co., 63 N. J. L. 465, affirmed 64 N. J. L. 279; Pierce v. Conterville Mfg. Co., 25 R. I. 512; Galveston Oil Co. v. Thompson, 76 Tex. 235; Podvin v. Pepperell Mfg. Co., 104 Me. 561, 129 Am. St. Rep. 411; Rooney v. Sewell Co., 161 Mass. 153; Connelly v. Hamilton Woolen Co., 163 Mass. 156; Lewis v. Simpson, 3 Wash. 541; Swoboda v. Ward, 40 Mich. 420; Strickland v. Capitol City Mills, 74 S.C. 16, 7 L. R. A. (N. S.) 426; Brooks v. De Soto Oil Co., 100 Miss. 849, Ann. Cas. 1914A. 656; Homestake Mining Co. v. Fullerton, 69 F. 923, 36 U. S. App. 32, 16 C. C. A. 545; Rabe v. Consolidated Ice Co., 91 F. 457; Paducah Box Co. v. Parker, 143 Ky. 607; 43 L. R. A. (N. S.) 179; Dettring v. Levy, 114 Md. 273; 4 Thompson on Negligence, sec. 4017; 18 R. C. L. p. 591, sec. 94; Duntley v. Inman, 42 Ore. 334; Westman v. Wind River Lbr. Co., 50 Ore. 137; Reichla v. Gruensfelder, 52 Mo.App. 58; Lemser v. Mfg. Co., 107 Mo.App. 219; Lightner v. Dunham, 195 S.W. 1055; Curtis v. McNair, 173 Mo. 284. (2) Defendant contends that the court erred in submitting to the jury defendant's negligence in failing to exercise ordinary care to keep his machinery in repair, that the boxings and babbitt bearings were old and defective and loosened and the wheels would not mesh true, so there was a wabbling or lateral movement of the gears. This necessitates a reference to the testimony in this regard. These instructions taken together well defined to the jury that issue of negligence. The court enumerated all the defects the jury must find to authorize a recovery, and defendant finds no fault therewith, except he states that there is no evidence in the records that the boxings and babbitt bearings were old, defective and loosened. He finds no fault with the charge that the gears did not mesh true, or that when said machinery was in motion there was a lateral motion of the gears and a vibration of the frame and bearings of the motor. He thereby tacitly concedes the sufficiency of the evidence to submit these facts. In other words, defendant claims that the jury were required to find all these facts when, in fact, plaintiff was entitled to recover upon proof of defects in the gears and the wobbling of the wheels and vibration of the frame. Defendant then, practically concedes that all the grounds which he now says were necessary to a recovery, were contained in this instruction and supported by evidence; but he makes complaint that plaintiff assumed the burden of proving more facts than were necessary to a recovery.

RAGLAND, C. Brown and Small, CC., concur.

OPINION

RAGLAND, C.

This is an action for personal injury caused, as it is alleged, by the negligence of defendant. Plaintiff recovered judgment for $ 10,000, and the defendant appeals.

At the time of his injury, plaintiff was employed by defendant as a "handy man" and laborer in one of the machine shops of the St. Louis & San Francisco Railroad Company, of which defendant is receiver, located at the City of Springfield. As an incident to such employment plaintiff was required to clean and wipe the dust and grease off of a certain electric motor and the shafting through which the power was transmitted from it to a large punching machine. This motor was completely enclosed in a housing and was supported by a metal frame bolted to...