Plefka v. Knapp, Stout & Co. Company

• Decision Date: 22 June 1898
• Court: Missouri Supreme Court
• Parties: PLEFKA v. KNAPP, STOUT & CO. COMPANY.<SMALL><SUP>1</SUP></SMALL>

46 S.W. 974

145 Mo. 316

PLEFKA v. KNAPP, STOUT & CO. COMPANY.¹

Supreme Court of Missouri, Division No. 1.

June 22, 1898.

MASTER AND SERVANT — PERSONAL INJURIES — PLEADING AND PROOF.

Proof that a servant was injured by using a defective machine does not prove an allegation that the defect caused the injury.

Case certified from St. Louis court of appeals.

Action by Andrew Plefka against the Knapp, Stout & Co. Company. A judgment for plaintiff was affirmed by the St. Louis court of appeals, and the case certified to the supreme court. Reversed.

Pollard & Werner, W. Palmer Clarkson, and Rowell & Ferriss, for appellant. Sturdevant & Stear, for respondent.

ROBINSON, J.

This suit was begun by plaintiff to recover for personal injuries which he alleges were caused by the defendant's negligently instructing and directing that he use and operate an unsafe appliance, called a "lumber hoister." The answer of defendant, in addition to a general denial, charged plaintiff with contributory negligence in the manner of handling the machinery, and further charged that, if the machine was defective in any particular as alleged, plaintiff knew thereof prior to and at the time he received the injury complained of, and assumed the risk of working with the machine in its then condition. At the trial of the case in the circuit court, plaintiff had judgment for $2,500, and defendant prosecuted its appeal to the St. Louis court of appeals, where the judgment of the circuit court, in an opinion written by Judge Bond, and concurred in by Judge Bland of that court, was affirmed, Judge Biggs dissenting, and, deeming the opinion in conflict with the following cases: Helfenstein v. Medart, 136 Mo. 607, 36 S. W. 863, 37 S. W. 829, and 38 S. W. 294; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Bradley v. Railroad Co., 138 Mo. 293, 39 S. W. 763; Lucey v. Oil Co., 129 Mo. 32, 31 S. W. 900; Devitt v. Railroad Co., 50 Mo. 302; Ellingson v. Railroad, 60 Mo. App. 679, — asked that the case be certified to this court, which was accordingly done.

As we read the record herein, there appears to us no occasion to discuss this case upon the lines pursued by the court of appeals, or of considering whether the opinion as written and approved by the majority of that court is opposed to the doctrine as announced in the Helfenstein and other cases cited, according to the view of the dissenting judge therein. There was no evidence in the case to justify its being submitted to the jury upon any theory. The defect in the appliance that plaintiff was given to use, as charged in his petition, was that a shoe had been removed from the base of the carriage of the hoister; and it is alleged that, in consequence thereof, a board that was being hoisted by plaintiff fell from the machine, and struck him upon the foot. To have maintained plaintiff's action, it was necessary for him to have shown, either directly that the board that fell upon his foot slipped or fell out of the machine because of the absence of the shoe, or a state of facts so connected with and related to each other must have been shown that the conclusion, therefore, might reasonably and fairly be made that such was the cause of the fall of the board. The mere proof of the absence of some particular part of a machine that is being used, and the proof that an injury has occurred to a person using the machine in that condition, does not fill the measure of proof of the charge that the injury was occasioned on account of the absence of the detached part of the machine. That the board did fall from the trough or plane of the machine in which it was placed because of the absence of the shoe (with its projecting lip," as it is termed) is possible. That it might have fallen from one of a half dozen other causes that could be suggested is quite as probable. That it would not fall if placed properly on the machine, with its lower end resting on the iron...