Pate v. Big Bend Quarry Co.

• Decision Date: 02 April 1940
• Docket Number: No. 25095.,25095.
• Citation: 138 S.W.2d 709
• Parties: PATE v. BIG BEND QUARRY CO.
• Court: Missouri Court of Appeals

138 S.W.2d 709

PATE v. BIG BEND QUARRY CO.

No. 25095.

St. Louis Court of Appeals. Missouri.

April 2, 1940.

Rehearing Denied April 16, 1940.

Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by Ida Pate against Big Bend Quarry Company, a corporation, to recover damages for the death of plaintiff's husband. From an adverse judgment, defendant appeals.

Affirmed.

Fordyce, White, Mayne, Williams & Hartman and F. W. Schwarz, all of St. Louis, for appellant.

Rubey M. Hulen and Forrest M. Hemker, both of St. Louis, for respondent.

BECKER, Judge.

This is an action brought by Ida Pate, the widow of Fred J. Pate, to recover damages for the death of her husband, alleged to have resulted through the negligence of defendant. The cause was instituted in the Circuit Court of the City of St. Louis, wherein a jury trial was had in December, 1937, resulting in a verdict and judgment in favor of plaintiff in the sum of $7,500. After an unavailing motion for a new trial defendant appealed.

The first amended petition upon which plaintiff went to trial alleged, in substance, that the defendant operated a certain quarry, in connection with which it owned and maintained certain quarry equipment, including a derrick used to lift rock from the floor of the quarry to the surface; that on and prior to August 27, 1936, the defendant "was under contract with the Federal Works Progress Administration, and by the terms and provisions of said contract with the Federal Works Progress Administration the defendant was bound and obligated to furnish, inspect, maintain, repair, and keep up the equipment used in connection with the operation of said quarry, including said derrick, on those days that the Federal Works Progress Administration was engaged in using said quarry and taking rock therefrom, in consideration of receiving a certain contract compensation on the rock removed by the Federal Works Progress Administration."

The petition further alleged that at the operating end of the brake shaft of the said derrick there was an iron hub fitted onto the shaft to which a brake lever was attached; that the hub was keyed to the brake shaft with a square key fitted into a keyway, half in the hub and half in the shaft to prevent the hub from working off the shaft.

It was further stated in the petition that defendant negligently furnished a derrick which was defective, not reasonably safe, unfit and dangerous "in that said hub so fitted to said shaft, and the parts thereof, to-wit, the key and set screw, were not of proper size, and said hub, key and set screw were negligently permitted to become loosened, worn and thereby allow the brake to turn free on the shaft and said hub to slip off the brake shaft."

That on August 27, 1936, while plaintiff's husband, Fred J. Pate, was working on the floor of said quarry, in the employ of the Works Progress Administration, shortly after 2:30 in the afternoon, said derrick was lifting a load of rock out of the quarry, and when it had reached a point about 7 feet above the surface of the quarry, some 30 feet out from the north wall, it was stopped and the box then swung over toward the north side of the quarry, and when the box got within about 2 feet of the north wall the brake hub on the derrick failed to hold and slipped off the shaft, allowing the shaft to give way and turn free of the hub, and the box dropped, the rock falling to the bottom of the quarry, where some of the rock struck Pate and caused his death.

At the close of the case defendant offered a demurrer on the ground that there was insufficient evidence adduced to make a case for the jury without resorting to conjecture and speculation. The demurrer was overruled and the cause submitted to the jury upon plaintiff's main instruction, which required a verdict for plaintiff if it believed and found from the evidence that the derrick was defective and not reasonably safe at the time it was furnished, in that the said set screw "was not of proper size, and said set screw was loose, and the threads worn and the key not of proper length."

Defendant here on appeal from the judgment rendered against it below, presents as its assignments of error the failure on the part of the court to sustain its demurrer offered at the close of the whole case, contending that the evidence was insufficient to submit the case to the jury, and that the trial court erred in giving instruction numbered 1 on behalf of plaintiff, as there was not sufficient evidence to support the predicates of recovery contained therein.

We have in mind that the burden remains with the plaintiff throughout the case to establish by proof not only the negligence alleged, but also to show a direct connection between such negligence and the injury. However causal connection need not be shown by direct and positive evidence but may be shown by other facts and circumstances. "In the philosophy of the law of actionable negligence the proof of negligence itself is but one step toward recovery. Another step is to show by direct testimony, or by the proof of such facts as logically create the inference, that the negligence proved proximately caused or contributed to the injury. The one step, without the other, is idle, and might as well not be taken." Harper v. St. Louis Merchants' Bridge Terminal Co., 187 Mo. 575, 586, 86 S.W. 99, 102.

In determining the question as to whether or not plaintiff made out a case for the jury we are mindful that on demurrer plaintiff's evidence, whether contradicted or not, must be regarded as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and that defendant's evidence must be taken as false where it is contradicted by that of plaintiff. Furthermore, plaintiff is entitled to the benefit of every reasonable inference favorable to her case, which the evidence tends to support. Thompson v. Wilson, Mo.App., 119 S.W.2d 848; Grubb v. Curry, Mo.App., 72 S.W.2d 863; Barken v. S. S. Kresge Co., Mo.App., 117 S.W.2d 674; Reed v. Swift & Co., Mo. App., 117 S.W.2d 636; Speakman v. Kurn, Mo.App., 115 S.W.2d 185; Evans v. Sears, Roebuck & Co., Mo.App., 104 S.W.2d 1035.

Appellant contends that there is no evidence to support a recovery on the grounds: (1) that the set screw was not of proper size; (2) that the set screw was loose; (3) that the threads on the set screw were worn; (4) that the key was not of proper length.

Our reading of the record has brought us to the conclusion that there is testimony sufficient to support a recovery on each of the said four predicates which appellant has challenged.

That the set screw on the hub of the brake shaft was not of proper size is supported by the testimony of Burt Cook, "maintenance and equipment man" for the defendant, who was adduced as a witness by plaintiff. With reference to the set screw he was asked:

"Q. But it was smaller than a proper screw for that size hole? A. I would say it was.

"Q. You would say it was? A. Yes, sir.

"Q. In repairing it did you bore a new hole and put in a larger screw? A. Yes, sir.

"Q. The screw you took out was too small for the hole, was that the reason? A. Not all together the reason. No.

"Q. But that was one of the reasons? A. That was one of the reasons."

Thomas F. Bush who testified that he was superintendent for the defendant company since 1931, a witness for plaintiff, testified, among other things, that later in the day on which Pate had been killed he "saw the shaft that the brake lever fastens on to. * * * I believe I took that lever in my hand and examined the set screws. Yes, sir, I am positive I did. I will stay by that.

"Q. As a result of that examination you found what with reference to the set screw? A. I think it was a nice fit.

"Q. No; with reference to turning it with your hand? A. I believe you could; I believe you could turn the set screw with your hand; I think that's correct. That is the set screw that serves the purpose of keeping the hub from slipping off the shaft.

"Q. I will ask if as a result of your inspection of that hub and shaft there immediately after this box of rock fell, if from your examination you could tell what caused the hub to come off that shaft? A. Well, it would be an opinion.

"Q. Well, what is your opinion? A. My opinion would be that the set screw came loose for some reason.

"Q. And that permitted the hub to slip off the shaft? A. Yes, sir; and the set screw for some reason, I don't know why, for some reason, that it came loose and was the cause of it slipping off. I don't think anything else could cause it. Loosened or came loose itself."

This witness also testified that if a set screw was too small it would come loose more often than if it was a proper fit.

The testimony we have set out above, if believed,...