Meifert v. New Union Sand Co.

• Decision Date: 16 April 1907
• Citation: 124 Mo. App. 491,101 S.W. 1103
• Court: Missouri Court of Appeals
• Parties: MEIFERT v. NEW UNION SAND CO.<SMALL><SUP>*</SUP></SMALL>

101 S.W. 1103

124 Mo. A. 491

MEIFERT v. NEW UNION SAND CO.^*

St. Louis Court of Appeals. Missouri.

April 16, 1907.

Rehearing Denied April 30, 1907.

MASTER AND SERVANT—INJURY TO SERVANT— FAILURE TO GUARD MACHINERY.

An employé was injured by having his foot caught between unguarded cogwheels while oiling the machinery. While he stood on a shaft on which one of the wheels revolved when in motion, the engine operating the machinery, for some unknown reason, gave a single stroke, causing the shaft to revolve, and, in attempting to regain his balance, he stepped into the cog-wheels. The employé was one of the engineers, and had shut down the engine, as the oiling of the machinery was done while the same was at rest. The wheels were inside the framework on which the machinery rested, and no one went near them, except for oiling. Held, that the employer as a matter of law did not violate Rev. St. 1899, § 6433 [Ann. St. 1906, p. 3217], requiring manufacturers to guard belting when so placed as to be dangerous to employés.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Richard Meifert against the New Union Sand Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Seddon & Holland and Block & Sullivan, for appellant. Alfred P. Hebard and Everett W. Pattison, for respondent.

GOODE, J.

This respondent's foot was crushed by being caught between a large and small cogwheel which geared with each other. The accident happened in appellant's establishment. This was a sand hoisting apparatus on the bank of the Mississippi river, in St. Louis. The apparatus consists of ponderous machinery operated by steam, and placed in two buildings. Such parts of the machinery as concern the case will be described, though, perhaps, no clear notion of how the different parts were placed with reference to each other can be imparted. We have been assisted in our study of the case by a photograph of the interior of the room in which the accident happened, from which an understanding of the mode in which it happened has been derived. The hoisting machinery rested on a trestle about seven feet square and a few feet above the floor. Two large drums wrapped with steel wire composed part of the apparatus. They were apparently two and one-half to three feet in diameter. Over these drums ran steel cables extending outside the building. One of them was used to shift the position of the sand barges on the river, and the other to hoist the sand from the barges. Motion was communicated to the drums, or to one of them, by the cogwheels in which respondent caught his foot. These wheels were placed to the rear, and below the drum they were to turn, and rotated on steel shafts. The engine which operated the plant was placed immediately outside the trestle the machinery rested on and in the same room. When the machinery was to be oiled, the engine was shut down, and the motion of the machinery stopped. When oiling the drum, which was situated above the cogwheels, it was necessary for a workman to stand on the shaft on which the smaller cogwheel revolved when in motion. With the workman in that position, the steel drum was on a level with his chest, and its upper portion reached a few inches below his chin. There is an oil hole in about the center of the drum. The steel cable running on the drum usually covered the oil hole, and in order to reach the hole with the nose of the oil can, it was necessary to shift the cable. While respondent was in the act of shifting the cable to afford him access to said oil hole, the engine, for some unknown reason, gave a single stroke, causing the shaft on which he was standing to revolve. The movement unsteadied respondent, and, in attempting to regain his balance on the shaft, his foot was caught between the cogwheels by the side of which he was standing, crushing it. The motion of the machinery was but for an instant, and it does not appear whether the shaft made a complete revolution or not. Respondent was one of the engineers of the plant and was the only person who worked in the room. The fireman worked at the furnace in the adjacent room, and it was his duty to go into the machinery room and oil the machinery at times when it was idle or stopped for the purpose. On the occasion in question, respondent stopped the engine by closing the throttle. The way respondent happened to take part in oiling the machinery was that, when the fireman endeavored to move the cable on the drum so as to reach the oil hole, he was unable to do so, and called respondent to his assistance. This was customary, and, in accordance with the custom, respondent went to the fireman's assistance, took his position on the shaft, grasped the cable, and the engine started. The testimony goes to show the oiling was always done while the apparatus was at rest, and, until this particular occasion, the machinery had never moved during the oiling. Respondent testified further that if the throttle was closed, but not quite tight, the engine would gradually accumulate a head of steam in the steam chest and start the engine. He testified he had discovered no leaks in the valves, or any other defects in the engine; that no other employé, or other person, could, or had occasion, to get on the shaft or near the cog-wheels while the machinery was running. It should be stated that the cogwheels were inside the framework on which the machinery rested, and, as far as is shown from the evidence, no one went about them, except when the machinery was to be oiled.

The negligence alleged is omitting to guard the cogwheels; it being contended that this omission constituted a violation of the statute requiring belting, shafting, gearing, and drums in manufacturing, mechanical, and other establishments, when so placed as to be dangerous to persons employed therein, while engaged in their ordinary duties, to be safely guarded, if possible. Rev. St. 1899, § 6433 [Ann. St. 1906, p. 3217]. It is not denied there was evidence to show the wheels could have been guarded without interfering with the hoisting, or that plaintiff, when injured, was performing an ordinary duty. The only question for decision is whether or not the wheels were so placed as to be dangerous to employés while engaged in their ordinary duties. That they were not is self-evident, we think. No one was supposed to go near them, except when they were motionless and harmless, and then only the engineer and fireman, to oil the drum occasionally. How the engine happened to start unexpectedly is not explained, for the engineer swore he had worked with it four years without noticing any leak of steam into the steam chest, and that he had closed the throttle tight. Likely he was mistaken about having done this, and on the contrary, had left a slight opening through which steam seeped into the chest. But such an incident never had happened before, nor had the machinery ever started while an employé was standing on the shaft by the cogwheels to oil the drum. That the engine should start and rotate the shaft was scarcely imaginable.

Respondent's counsel say appellant's managers were bound to anticipate a possible leak of steam into the chest or the engineer leaving the throttle partly open, or some other person opening it while the oiling was being done; were bound to anticipate, further, that, in consequence of one of those occurrences, some workman standing on the shaft would get caught by the cogwheels. Foresight to that extent would be divination, rather than anticipation. If the shaft happened to rotate unexpectedly, it would be the merest chance that a man standing on the shaft would be caught in the cogs, and no ordinary sagacity would apprehend danger from the cogwheels. The law does not require these unthinkable accidents to be guarded against, because, though they happen now and then, in order to guard against them, they would have to be foreseen. In Strode, etc., v. Columbia Box Co., 101 S. W. 1099, we examined all the accessible decisions construing statutes like the one in question, for the purpose of ascertaining what machinery the statute requires to be guarded. Instead of going over the subject again, we will refer the reader to that opinion. Even when the law contains no express qualifications of the duty to guard, the courts have construed it to require guarding only when danger to employés from the appliance is within reasonable anticipation. The language of our statute excepts from the force of it wheels and other appliances so placed as not to be dangerous to employés while engaged in their ordinary duties. Of course, this, in most instances, would raise a question for the jury; but, when the evidence has no tendency to prove a man of ordinary care would have foreseen the danger, it is a question of law. We can think of no case in which danger would be less likely to occur to the mind in advance than the instance before us.

As the plaintiff pleads negligence at common law, as well as under the statute, the judgment is reversed, and the cause remanded. All concur.

NOTE.

Covering or Guarding Dangerous Machinery or Places.

[a] (U. S. 1902) A commercial ice house, which is extensively equipped with machinery, and in which numerous operators are employed, is a "factory," within Laws N. Y. 1897, c. 415, providing that "shafting, set screws and machinery of every description shall be properly guarded" by the owners of factories where machinery is used, and declaring that the term "factory" shall be construed to include also a "mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor."—Rabe v. Consolidated Ice Co., 113 Fed. 905, 51 C. C. A. 535.

[aa] (U. S. 1890) The failure of the employer to provide coverings for cogwheels is not negligence per se.—Townsend v. Langles (C. C.) 41 Fed. 919.

[b] (Ariz. 1895) A mill owner is not liable for injury to an employé in operating a saw,...