Kuhn v. Lusk

• Decision Date: 02 March 1920
• Docket Number: No. 20599.,20599.
• Citation: 281 Mo. 324,219 S.W. 638
• Parties: KUHN v. LUSK.
• Court: Missouri Supreme Court

219 S.W. 638

281 Mo. 324

KUHN v. LUSK.

No. 20599.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Paul Kuhn against James W. Lusk, as receiver of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. F. Evans, of St. Louis, and Mann, Todd & Mann, of Springfield, for appellant.

Sizer & Gardner, of Monett, for respondent.

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 inclosed in a housing and was supported by a metal frame bolted to the concrete floor on which it rested. It faced south, and projecting from the center of it in that direction there was a shaft that revolved as the motor did. On this shaft, and so attached that it revolved with it, there was a cogwheel six inches in diameter. This small cogwheel, at a distance of about eight inches from the motor cover, meshed with a larger one, twenty-six inches in diameter, on a shaft immediately connected with the punching machine, and thus by the means of these cogwheels or gears and their respective shafts the power was communicated from the motor to the machine. The accompanying cut is from a photograph of the motor and gears introduced in evidence on the trial below. A great deal was said by the witnesses as to the locations of the boxing and bearings on the shafts or axles on which are the two cogwheels. As one of the specifications of negligence has for its basis the alleged defective condition of these boxing and bearings, the evidence in respect to their several locations is important; yet as the witnesses, when testifying on the subject, had photographs before them, and merely said, for example, "There is a boxing," or "Here is a bearing [indicating]," without the record in any way disclosing what the witnesses indicated, the whole of their testimony as to such locations is obscure, and some of it conveys no meaning at all. However, the photograph shows that the axle on which is the small cogwheel extends from its support south of the wheel north through the framework of the motor. It appears to be inclosed within boxing at the north end, where it projects through the motor, and also between the motor frame and the cogwheel, and between the wheel and its support at the south end. It evidently has two bearings in the motor frame, and one where it is supported at the south end. The shaft revolved by the large cogwheel is parallel with the one on which is the small one, about sixteen inches west of the latter, similarly boxed, and has its bearings on the same supports. The boxing and bearings of these shafts, it is said, were lined with babbitt. The bottom of the large cogwheel was about three inches, and the two shafts about sixteen inches, from the floor. The top of the motor housing seems to have been about the same distance from the floor as the top of the large cogwheel, about two and a half feet: When the motor and gears were in operation the small cogwheel made approximately 1,200 revolutions a minute and the large one in proportion. The cogs were two and a fourth inches wide and revolved upward. The motor and gears were inclosed by shields or other barriers on the north, west, and south sides, so that they could be approached from the east side only. None of the employés of the defendant had any occasion to be near or about them, except those whose duties required them to inspect, repair, oil, or clean them. At the time the machine was originally installed there was a housing or cover that so inclosed both cogwheels that it would have been impossible for any one working on

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or about it to have come in contact with the cogs. This cover was furnished by the manufacturer as a part of the machine, and for a time was so maintained by the defendant. It did not in any way interfere with the practical operation of the machine; notwithstanding, without any apparent reason, it had been removed and its use discontinued for a considerable length of time prior to plaintiff's injury.

At the time of his injury plaintiff was 40 years of age and in the possession of all his faculties. He was a general utility man in the defendant's shops, where he helped the machinists, looked after the belts, and cleaned the motors and machinery. He had been so engaged in a general way during the preceding nine years, and consequently was entirely familiar with the operations of shafts, belts, and motors and the dangers incident thereto. He had been cleaning the motor in question for about two years. The motor proper was cleaned by blowing the dust and dirt out with compressed air conveyed through the nozzle of a hose applied at the openings in the motor cover. The dust and grease that accumulated on the motor frame and boxing around the shafts was wiped off with a piece of waste. It seems that, in connection with one of the grease cups, grease would accumulate on the lower side of the boxing around the shaft of the small cogwheel between it and the motor. This grease would harden and become gummy so that it required considerable pressure of the hand to remove it with the waste. It was while attempting to clean the boxing at this place that plaintiff was hurt. In so doing he got into a stooping or squatting position at the northeast corner of the motor frame, took hold of the ring at the top of the motor cover with his right hand, and with his left, in which he held a piece of waste, he reached over and back under the shaft of the small cogwheel and began to wipe the grease off of the bottom side of the boxing, when the sleeve of his jacket fed into the cogs, and his forearm was drawn up through them and thrown out ground into pulp.

Plaintiff had been required to clean this motor once a week. Prior to about eleven months before he was hurt he had never cleaned it while it was running. At that time a new foreman was put in charge, and he directed plaintiff, according to the latter's testimony, to clean the motor while it was running so as not to interfere with the work of the men, as it took about 15 minutes for the machine to come to a stop after the power was shut off. Thereafter, when the motor was to be cleaned, if the punching machine seemed to be idle, although kept constantly running, plaintiff requested the operator to shut off the power, which the latter always did; if the machine was engaged, he proceeded to clean the motor while it and the gears were in motion. He had cleaned it while in motion four or five times before he was hurt. The foreman emphatically denied that he had directed plaintiff to clean the motor while it was running. Other facts necessary to an understanding of the legal questions involved will be stated in connection with their consideration.

The allegations of the petition with respect to the negligence charged are as follows:

"Plaintiff states that his injuries aforesaid were directly caused by the negligence of the defendants, their agents, servants, and employés: "In failing to exercise ordinary care to furnish plaintiff a reasonably safe place to work, in that defendants failed to exercise ordinary care to properly house or shield the gearing and cogwheels to said motor.

"In negligently and carelessly ordering plaintiff to wipe and clean said motor while the same was in operation, instead of permitting plaintiff to clean same after said motor was stopped.

"In failing to exercise ordinary care to keep said machinery in reasonably safe repair, so that same would not be dangerous for plaintiff to work in and about said motor; in that the boxing and babbitt bearings were old and defective, and were loosened, and the small gearwheel did not mesh true with the larger gearwheel, so that when the machinery was in motion the lateral movement of the gears and the vibration of the frame of the motor and the bearings on the shafting caused the sleeve on plaintiff's arm to feed into and become caught in the gears thereof.

"In failing to exercise ordinary care to maintain and keep said machinery in reasonably safe condition, and in abandoning the hood and shield which had previously been furnished and fitted to said gearing to protect employés working in and about said machinery.

"Plaintiff further states that by reason of the different acts of negligence, as aforesaid, acting separately or conjointly, plaintiff was injured as aforesaid, to his damage in the sum of twenty-five thousand ($25,000) dollars."

The answer Is a general denial and a plea of contributory negligence.

At plaintiff's request the court instructed the jury with reference to defendant's negligence as follows:

"The court instructs the jury that in determining whether or not the defendant, his agents or employés, was negligent, as required by the first instruction, you should only consider the following grounds of negligence alleged by plaintiff in his petition, to wit:

"(1) In failing to exercise ordinary care to furnish plaintiff a reasonably safe place to work, in that defendant failed to properly house or shield the gearing and cogwheels to said motor.

"(2) In failing to exercise ordinary care to keep said machinery in reasonable safe repair, in that the boxing and babbitt bearings were old and defective and loosened, and the wheels would not...