Lilley v. Eberhardt

• Decision Date: 31 March 1931
• Docket Number: No. 28798.,28798.
• Citation: 37 S.W.2d 599
• Parties: LILLEY v. EBERHARDT.
• Court: Missouri Supreme Court

37 S.W.2d 599

LILLEY v. EBERHARDT.

No. 28798.

Supreme Court of Missouri, Division No. 1.

March 31, 1931.

Appeal from Circuit Court, Andrew County; Guy B. Park, Judge.

Action by Clarence Lilley against Fred F. Eberhardt, doing business as the Fred F. Eberhardt Paving Company. A verdict for plaintiff was set aside as inadequate on his motion for a new trial, and defendant appeals.

Affirmed and remanded.

Brown, Douglas & Brown, of St. Joseph, for appellant.

G. C. Sparks, of Savannah, and Duvall & Boyd and Miles Elliott, all of St. Joseph, for respondent.

GANTT, P. J.

This came to me on reassignment. Action for damages in the sum of $25,000 for personal injuries. Verdict for $500. On motion of plaintiff for new trial, the verdict was set aside as inadequate. Defendant appealed.

It is alleged in the petition that, at the time of injury, defendant was engaged in paving a highway in Andrew county; that on June 7, 1926, he "then and there maintained and operated a certain establishment in which the machinery and gearing were so placed as to be dangerous to persons employed therein, or thereabout, while engaged in their ordinary duties, and negligently and in violation of section 13222, R. S. 1929, failed to safely and securely guard said machinery and gearing when it was possible to so guard the same"; "that said establishment consisted among other things of a certain machine known as `Lakewood Road Finisher and Tamper,' and that the machinery, gearing and cogs of said machine were so placed as to be dangerous to persons, including plaintiff, employed therein or thereabout while engaged in their ordinary duties; and that defendant negligently and in violation of said statute failed to safely and securely guard said machinery, gearing and cogs when it was possible to so guard the same, and negligently and in violation of said statute kept and maintained said machinery, gearing and cogs in an unsafe and unguarded condition;" "that on said June 7, 1926 in said Andrew County, Mo., plaintiff was in the employ of defendant in and about the work of constructing and building said highway and highway pavement, and while in the performance of his ordinary duties for defendant was required to work and did work in, about, and upon said establishment and machine, and at and about said machinery, gearing and cogs while the same was in operation; and while in the performance of his ordinary duties for defendant, as aforesaid, was by reason of defendant's wrongful and negligent violation of said statute and by reason of plaintiff's right hand being caught by and in said machinery, gearing and cogs, caused to sustain painful and serious injuries."

Defendant admitted the employment and injury, but denied the other allegations of the petition. Further answering, defendant pleaded assumption of risk and contributory negligence. The trial proceeded as if the reply was a general denial.

At the time, defendant was laying from west to east an 18-foot concrete pavement on this highway. Steel rails 18 feet apart served as forms for holding the concrete deposited on the highway and for a track on which to run the tamping machine. This machine was constructed of steel beams extending lengthwise, to which were attached steel crossbeams. The gasoline engine, wheels, cogs, and other necessary machinery were located on this skeleton steel framework. The machine was 18 feet wide, being the full width of the concrete roadway. Its length does not appear, but the photographs indicate that its width was much greater than its length. The steel beams extending lengthwise rested on wheels, which moved on the rails. As the concrete would be deposited by the mixing machine, the tamping machine followed closely, smoothed down the concrete, if necessary, with a "strike-off board" attached to the machine, and then tamped and finished the paving by operation of the machine. The machine moved back and forth by its own power and was operated from its sides by levers. A board about a foot wide extended across the machine for use by the operator as a bridge when oiling the machinery, and for use by him in moving from side to side to operate the levers. The board was bolted to and a part of the machine. In attempting to cross the bridge while the machine was in motion, plaintiff slipped, fell, and his hand was caught in the cogwheels. After plaintiff had been in the service of defendant for six weeks as a laborer on the concrete pile, the defendant transferred him to the tamping machine, which he operated only three days before the injury. There was evidence tending to show the wheels could have been guarded. Indeed, defendant insists the plaintiff could have done so.

I. It is contended the finishing and tamping machine was not a manufacturing establishment, and, therefore, the plaintiff was not within the protection of the statute.

At the time of injury, defendant was engaged in mixing sand, cement, gravel, and water with a mixing machine, and thereby producing concrete. This would be deposited on the highway by said machine. The tamping machine followed closely, smoothed down the concrete, tamped it, and finished the surface, thereby manufacturing the paving—a finished product. Of course, manufacturing is usually conducted in buildings, and the word "establishment" as ordinarily used means a permanent place where business is conducted. Even so, the purpose for which the statute was enacted will lead to the statutory meaning of the word. The section follows: "The belting, shafting, machines, machinery, gearing and drums in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments. Whenever the commissioner of labor and industrial inspection, or his assistant, or deputy, finds that guards have not been installed or notice of danger posted, as required by the provisions of this section, he shall at once, in writing, order the owner or owners, or the person or persons in charge of the machinery, plant, establishment, or place, to make the alterations, additions, or repairs necessary within ten days; and if the said alterations, additions or repairs be not made within ten days from the date of such order, then such failure to make such alterations shall be deemed a violation of this article, and in addition to the penalties hereinafter prescribed for such violations, the commissioner or his assistant or deputy, shall be and is hereby empowered to, and he shall seal said defective appliance or appliances in such a manner as to render the same inoperative until said order of the commissioner has been complied with." Section 13222.

The provision requiring the labor department to order those in charge of machinery, plants, establishments or places to guard, when...