Leffler v. The Anheuser-Busch Brewing Association

• Decision Date: 03 December 1907
• Parties: LEFFLER, Appellant, v. THE ANHEUSER-BUSCH BREWING ASSOCIATION, Respondent
• Court: Missouri Court of Appeals

106 S.W. 105

127 Mo.App. 488

LEFFLER, Appellant, v. THE ANHEUSER-BUSCH BREWING ASSOCIATION, Respondent

Court of Appeals of Missouri, St. Louis

December 3, 1907

Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster Judge.

AFFIRMED.

Judgment affirmed.

Walther & Muench for appellant.

(1) The happening of an event which, in the court of the customary and proper use of an appliance, when in good condition, would not have happened, is of itself evidence of negligence, under the doctrine of res ipsa loquitur, and calls for an explanation by the defendant, and the mere fact of the relation of master and servant is not sufficient to render this doctrine inapplicable between them. St. Clair v Railroad, 122 Mo.App. 529; Lee v. Railroad, 112 Mo.App. 406; Mooney v. Lumber Co., 154 Mass. 407. (2) It was the duty of the defendant to furnish plaintiff a reasonably safe place to work and to see that the appliances he was called upon to use were in a reasonably safe condition and were kept so. Nichols v. Plate Glass Co., 126 Mo. 55; Burnes v. Railroad, 129 Mo. 56; Herdler v. Stove & Range Co., 136 Mo. 3; Bender v Railroad, 137 Mo. 245; Bowen v. Railroad, 95 Mo. 276; Porter v. Railroad, 71 Mo. 71. (3) Plaintiff, in his employment as a millwright, took only such risks as were apparent, but not those incident to concealed defects. In no event did he assume the risk of the master's negligence. Butz v. Construction Co., 199 Mo. 286, and cases cited; Blundell v. Mfg. Co., 189 Mo. 552; Cole v. Transit Co., 183 Mo. 81; Curtis v. McNair, 173 Mo. 270; Bender v. Ry. Co., 137 Mo. 240; Helfenstein v. Medart, 136 Mo. 595; Nichols v. Plate Glass Co., 126 Mo. 55; Connolly v. Printing Co., 166 Mo. 447; Lore v. Am. Mfg. Co., 160 Mo. 608; Blanton v. Dold Pkg. Co., 109 Mo. 64. (4) The fact that plaintiff placed his foot upon the cogwheels by which it was injured will not bar a recovery if the injury would not have occurred but for the defendant's negligence in allowing the loose pulley to be and remain in a defective condition. Bassett v. St. Joseph, 53 Mo. 290; Hull v. Kansas City, 54 Mo. 598; Brennan v. St. Louis, 92 Mo. 482; Musick v. Packing Co., 58 Mo.App. 322; Nichols v. Plate Glass Co., 126 Mo. 55. (5) Evidence of the defective condition of the slip pulley in another location, a month before the accident, was admissible to show knowledge on the part of the defendant, where it was not shown that the pulley had been changed or repaired in the meantime. Swadley v. Railroad, 118 Mo. 268; Pauck v. Dressed Beef Co., 166 Mo. 639; Gayle v. Car & Fdry. Co., 177 Mo. 427.

Jones, Jones, Hocker & Davis and Geo. S. Grover for respondent.

(1) Under the pleadings and the evidence in this cause, the plaintiff was not entitled to recover. Richardson v. Mesker, 171 Mo. 666; Smith v. Box Co., 193 Mo. 715. (2) The burden of proof, in this action, to establish the negligence of defendant, was upon the plaintiff, from the beginning to the end of the case. Epperson v. Postal Tel. Cable Co., 155 Mo. 382; Glasscock v. Dry Goods Co., 106 Mo.App. 664. (3) The evidence offered by plaintiff was clearly inadmissible and was therefore properly excluded. Hipsley v. Railroad, 88 Mo. 354; Sidekum v. Railroad, 93 Mo. 405; Alcorn v. Railroad, 108 Mo. 81; Mahoney v. Railroad, 108 Mo. 200.

OPINION

GOODE, J.

--Appellant received a personal injury while working in respondent's establishment in the city of St. Louis. He had been employed by respondent during the month of May, 1905, in setting up and erecting machinery in different departments of its brewery; but had been in respondent's service for three years. Appellant is a millwright of thirty-five years' experience. Portions of the machinery in respondent's establishment were being moved from one room to another and installed in new quarters. One of the pieces which had been moved was a device or machine used for pressing water out of thin wood, the leaves of wood afterwards being used to wrap bottles. This machine had been kept in operation previously in another part of the brewery, but about June first, its location was changed and it was while plaintiff was at work installing it in its new quarters that he was injured. The machine was ponderous and consisted of three parts; the legs or supports on which it stood, two heavy iron rollers through which the wood was passed, with cogwheels at the side which geared into each other and turned or rotated the rollers, and the pulleys above on which belting ran to carry power from the main shaft overhead to the wheels and rollers. What is called by the witnesses a "shifting arrangement" was used in connection with the pulleys and belt to transmit the belt from the tight to the loose pulley, or vice versa. When it was desired to move the machinery the belt was kept on the tight pulley and at other times it was shifted on the loose one. At the time of the accident the machine had been put in place and all its parts arranged, except the shifting appliance, on which the appellant was at work when he got hurt. The appliance was overhead and to reach it appellant had ascended a ladder which leaned against a joist. He was six or seven feet up the ladder and in the act of driving a nail, when a dizziness seized him and he attempted to descend. For fear of losing his balance and falling, he rested his left foot on the cogwheels of the machine. Either the pressure of his foot started the wheels into revolution, or else they were turning when appellant stepped on them. His toes were slowly drawn between the cogs before he could stop the machinery, which he did by throwing what he called the "counter belt" off the tight pulley. Said counter belt was shorter than the main belt and ran around a lower shaft, but was occasionally used as well as the main belt, to operate the pressing machine. Four of appellant's toes were so badly mashed they had to be amputated. He testified that the impact of his foot on the cogwheels would not have been sufficient to move the machine without the application of some force from above by a pulley. He said further that the machine may have been moving at the time he stepped on it, but so slightly or imperceptibly that he could not have seen it without taking special notice. Plaintiff further testified as follows:

"Up to the time of the accident, we had simply tested the machine to find out whether it worked all right. I put a number of layers of wrapping through and it squeezed the water out of them all right. I was to set the machine up and see that it was in running order; that the belt ran properly on the pulleys. I trained the belt to run fairly with the pulley in the presence of Mr. Jenny and Mr. Hardy. They were there to see that the belt tracked properly. I threw the belt from one pulley to the other and saw that it tracked properly on both. I did this before I was hurt. I tried the belt on the pulleys either on the morning of the day I was hurt, or the afternoon before, and I tried the machine on the wrappers, I believe, on the morning of the day on which I was injured. I was injured in the afternoon. The rollers of the machine are set in motion by the power communicated by the belt to the pulleys, through intermediate gearing. I had tried both the fast and the loose pulleys and found that the belt tracked over them properly. I never observed that the loose pulley was out of order until I saw my foot in the cogwheel and then I saw that something was wrong. When I was tracking the belt on the pulleys, both pulleys seemed to work all right; I observed nothing wrong at the time. I had been busy setting up this machine for about three days before the accident. It was my duty to finish the machine so that it could be used. I had finished setting up the machine the day before the accident, and all the forenoon of that day I had been working on the shifting arrangement which is entirely independent of the machine, although used to control it. The machine was moved in three parts. I helped to take it apart and also helped to put it together again."

He also testified that in setting up the machine the three parts of it were transferred from the room where it previously had been to its new location and put up in the precise condition they were before. Evidence was offered by the appellant to show that when the machine was in its former location, trouble had been experienced in stopping it when the belt was shifted from the tight to the loose pulley, and it had been necessary sometimes to insert a number of thicknesses of wrapping in the machine to keep it from moving after the belt had been shifted. This testimony was excluded by the court and an exception saved to the ruling. The charge of negligence in the petition is as follows:

"And plaintiff further avers that the defendant was then and there negligent and careless in and about the furnishing and the conduct of said machine, in this that the said slip pulley for a long time theretofore had become and been defective and inefficient in this, instead of freely and instantly slipping upon said shaft whenever the belt aforesaid was shifted thereto, the said pulley did frequently, as it did on said 2d day of June, 1905, fail to slip, and continued to revolve said machine and its parts, to the imminent danger of persons and employees rightfully working upon or near the same; and that such defect in said pulley was fully and for a long time theretofore known to the defendant, and was entirely unknown to the plaintiff prior to the happening of said injury; and that notwithstanding such knowledge, defendant failed to remedy such defects, but continued to use said machine in its defective condition, as aforesaid."

At the conclusion of the evidence offered by the appellant, the court, at respondent's request,...