Lohmeyer v. St. Louis Cordage Co.

Citation214 Mo. 685,113 S.W. 1108
Decision Date25 November 1908
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Mary Lohmeyer against the St. Louis Cordage Company. From a judgment for plaintiff, defendant appealed. Cause transferred to St. Louis Court of Appeals.

W. H. & Davis Biggs, for appellant. Kinealy & Kinealy, for respondent.


Domiciled in St. Louis, defendant corporation makes and sells rope and twine. In its factory there is in use a machine for twisting hemp and forming rope, known as a "forming machine." Plaintiff, a young woman of 20 years, labored at the machine as an operator. It was an intricate contrivance set in an iron frame, and consisting of gearing, cogwheels, pulleys, belting, etc., and was manipulated by a lever regulating the power. On the 13th day of February, 1902, her left hand was caught in the gearing and cogwheels, and two of her fingers were so crushed as to result in amputation. In a suit, grounded on the charge that defendant negligently left the gearing and cogwheels of that machine uncovered and unguarded, she had judgment for $1,500. That amount was held excessive, nisi, and she was forced to remit $500. From the new judgment of $1,000, defendant appeals. The petition does not specifically plead section 6433, Rev. St. 1899 (Ann. St. 1906, p. 3217), of the factory act, but as that is a public act of which courts take judicial notice, it was not necessary. Her case, however, is confessedly based on that statute, for at common law an employer owed no duty to his employé to fence his machinery. Defendant stood for its defense on (1) a general denial, coupled with an admission or two not material to any question made, (2) an assumption of risk, and (3) contributory negligence.

To sustain the issues on her part, plaintiff put in proof tending to show the negligence complained of, and tending to avoid the defenses of assumption of risk and contributory negligence. To sustain the issues on its part, defendant put in proof tending to show no negligence in the particulars charged, and tending to show an assumption of risk and contributory negligence. The case was put to the jury on instructions restricted to the foregoing issues, with the result indicated.

Questions of jurisdiction (at least of the subject-matter) may be raised at any stage of case in any court, by either court or counsel. Cable v. Duke, 208 Mo., loc. cit. 558, 106 S. W. 643. If we have jurisdiction, it is because a constitutional question was raised and is involved in the case. That question obtrudes itself and seeks an answer at the door of the case. To it, then, we address ourselves.

(a) Up to the stage of verdict and judgment, no constitutional question was raised. True, defendant by counsel had objected to the introduction of any testimony on the ground the petition did not state facts sufficient to constitute a cause of action. True, counsel had asked and were denied an instruction in the nature of a demurrer to the evidence at the close of plaintiff's case, and again were refused a peremptory instruction at the close of the whole case, yet these general challenges did not raise or involve a constitutional point according to recognized canons of procedure. Whatever the use of an ambush in war, or games of chance, its use does not commend itself to jurisprudence. An appellant may not mask his position in that way, and preserve under such cover his constitutional point. Nor would a general reference to the constitution, state or federal, do. He must come into the open and put his finger on the specific provision of the Constitution touched by the adverse ruling. Excelsior Springs v. Ettenson, 188 Mo. 129, 86 S. W. 255, and cases cited; Davis v. Thompson, 209 Mo., loc. cit. 196, 107 S. W. 1067 et seq.; Independence et al. v. Knoepker, 205 Mo., loc. cit. 342, 103 S. W. 940 et seq., and cases cited.

(b) By a ground in the motion for a new trial,...

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