Nugent v. Kauffman Milling Co.

• Decision Date: 26 November 1895
• Citation: 131 Mo. 241,33 S.W. 428
• Parties: NUGENT v. KAUFFMAN MILLING CO.
• Court: Missouri Supreme Court

33 S.W. 428

131 Mo. 241

NUGENT v. KAUFFMAN MILLING CO.

Supreme Court of Missouri, Division No. 1.

November 26, 1895.

MASTER AND SERVANT — NEGLIGENCE OF MASTER — FAILURE TO GIVE INSTRUCTION — EVIDENCE.

1. The danger of feeding grain into crushers which consisted of two cylinders, revolving inwards, which were in full view, is apparent, and a servant 20 years old, employed to feed the crushers, injured by having his hand caught between the cylinders, cannot recover from his master for the injuries on the ground of the master's failure to instruct him as to the consequences of having his hand caught between the cylinders.

2. In an action for personal injuries, testimony of plaintiff that the accident was caused by a certain thing does not raise a question of fact to be submitted to the jury as to whether the accident was so caused, where plaintiff's theory contravenes all laws of mechanics and philosophy that are so generally recognized that courts cannot ignore them.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by John Nugent against the Kauffman Milling Company. From a judgment for plaintiff, defendant appeals. Reversed.

Lee & McKeighan and Jos. S. Laurie, for appellant. A. R. Taylor, for respondent.

ROBINSON, J.

This is an action for damages resulting from personal injuries received by plaintiff while working as an assistant in defendant's flouring mills in the city of St. Louis. The petition grounds plaintiff's cause of action upon the facts: That he was negligently commanded by one Porter, the agent of, and at that time in control of, defendant's mill, to feed the sweepings of defendant's mill into a certain roller or crushing machine therein. That the work was extrahazardous to the work for which plaintiff was employed, and that defendant's agent and manager well knew the work was dangerous when he ordered plaintiff to perform the same. That plaintiff was without skill or experience in doing such work, and that he was not cautioned as to its danger. That at the time or such order the roller machine was in a defective condition, and unfit and dangerous for the use to which defendant was applying it; and that the feed roller and appliances to regulate the feed from the hopper of the machine into the crushing rollers were at the time, and had for a long time prior thereto been, out of repair, and would not work, as defendant well knew; and that such defective condition of said machinery directly contributed to plaintiff's injury. That in obeying the order of defendant's manager plaintiff's left hand was caught between the crushing rollers, and in seeking to save it his right hand was also drawn into the machine, and both hands crushed, and greatly injured. Defendant filed, by way of answer, a general denial, coupled with a plea of contributory negligence on part of plaintiff. During the trial of the case, and at the closing of plaintiff's testimony, defendant asked an instruction in the nature of a demurrer to the evidence, which, proving ineffectual, was again renewed at the close of defendant's testimony, and again overruled. The jury receiving instructions from the court, found a verdict for plaintiff for $4,000, on which, in due course, a judgment was entered, to reverse which this appeal is prosecuted.

Several assignments of error to the action of the court in giving of instructions are made by defendant, but from the view we take of the testimony a discussion of the instructions will be unnecessary. The question presented is whether, under any view of the evidence, the injury can be attributed to any fault on the part of the mill company. What occasion was there for plaintiff coming in contact with the rollers? In what respect has defendant been guilty of a breach of duty to this plaintiff, or, if due in part to defendant's fault, whether plaintiff, under the facts of this case, did not assume the risk as an incident of his employment? The rules of law in such cases are too well settled to call for discussion. The servant, when he enters the employment of his master, assumes not only the risks incident to his employment, but all dangers which are apparent and obvious as a result thereof. The master is no insurer against all accidents that may overtake or befall the servant in his employ. The law of the courts, based on that higher and universal law governing not only man, but all the animal kingdom in their movements and operations, imposes upon the servant the duty of self-protection, and assumes that that impulse will guard him against all danger incident to his employment, or that may arise during the course of his employment, of which he has knowledge, or the means of knowing. If the servant violates the laws of nature, or fails to observe them, and a calamity befall him, the laws of the courts cannot relieve him at the expense of another simply because his injury happened while in the employ of that other. The plaintiff in this case was bound to observe the inward, rotary motion of the two large iron cylinders or rollers into which he was feeding the sweepings from the mill floor, to be crushed and pulverized, at the time of receiving his injuries; and, seeing, was bound to know that fingers, like the wheat and chaff fed to the machine, would be crushed if permitted to be caught therein; and, seeing and knowing these facts, he assumes the risks and perils incident to the work around and about the machines, unless by some agency, force, or power independent and outside of it, and not known or contemplated by him, his hands were pushed, driven, or pulled between the rollers, and that agency, force, or power was under the master's control, or such that he could reasonably have anticipated, and failed to provide against. Applying these principles to the case in hand, what standing has plaintiff? Plaintiff's testimony, as taken from the stenographic notes at the trial, shows quite a different state of facts from that alleged in the petition, or as might have been anticipated from the instruction given, which seemed to have been hypothecated thereon without reference to the facts shown. Plaintiff testified: "Mother says I was twenty when I went into the mill. I went there, I think, in February, 1889. * * * I was to sweep and clean up the place, and feed the stuff into these things, and do whatever the millers told me. * * * Most of the time I worked there I used a scoop shovel, and sometimes a large shovel. * * * Sometimes I would throw it in, and sometimes I would feed it off with my hand; and Mr. Porter and Mr. Simpson saw me at it many a time. Q. What did he tell you to use in feeding it there? A. A little tin scoop without a handle. Q. Show the jury what he said and did when he gave you this command? A. He pointed to the place by the rollers. Q. Did he take the scoop in his hand? A. Before I went to this roller at the other end, I didn't know what they called it then, but he took the scoop out of my hand, and he said: `You feed that in too fast, John. You have to feed it in slower; and afterwards always use this scoop all over the mill.' * * * Q. When you were feeding in there, what kind of material would come through the feed rolls onto the crushing rollers? A. Sometimes nails and pieces of iron, and stuff like that. * * * Q. How did your hand come to be drawn in? A. The scoop was knocked up so quick that my hand — I tried to save it with the other hand, and got both hands caught. Q. What was the scoop struck by? A. Iron, or something. I don't know what, but that is what it looked like. Q. Did it come through the feed roll? A. I don't know where it came from. * * * Q. How did you come to be feeding it that way? A. Mr. Porter told me to use that scoop to feed the stuff in. Q. Did you know there was danger there? A. Yes, sir. * * * Mr. Simpson [defendant's superintendent] hired me at the request of my mother. When I went to the mill, Simpson asked me what I could do, and I told him I had worked for the Linseed Oil Company from August to December of the previous year. Before that I had worked in a tobacco factory. Before that I had worked in a lumber yard. Mr. Simpson took me into the mill, and talked to Mr. Huff [defendant's employé], and he [Huff] came to me, and said he would show me my work, and said he had orders. * * * Q. Did he, the first time, show you how to feed them off with your hands? A. Yes, sir; he showed me how to feed them off of the shovel. Q. Into this place? Did he open the door, and show you how to do it? A. Yes, sir. Q. Did you see these rolls running? A. Yes, sir. Q. How fast did these rolls run? A. I could not say. Q. Did they run very fast? A. Yes, sir. Q. Did Huff show you anything about this hopper above the feed roll? A. The spout, they call it, I believe, that comes down into the place. He told be to watch that, and if it choked up to clean it out. Q. When the spout choked up, — whenever it did that, — there would be some material run over, and you would gather and sweep it up? A. Yes, sir; all over the floor. Q. And you were not told by either of them to put the sweepings into the hopper above the feed roll? A. I was told to put it into this roll [indicating]. Q. Was that the only place they told you to put it? A. They told me to feed it into both places. Q. Where was the other place? A. That was in the rolls; there was another little place open there. * * * Q. Was it the lowest or highest place you were feeding into when you got hurt? A. The lowest place. They told me to throw it in, and sometimes to sift it, and if I thought there was anything in it to pick it up; and they told me to be careful not to throw anything in if it had anything in that way. * * * Q. Didn't Mr. Simpson tell you not to put your hands about the rolls? A. No, sir; he never did. Q. Porter or Huff never told you? A. No, sir. Q. Did you know yourself of the danger at that time about the rolls? A. I knew it was there; but I didn't know that Porter would...