Popejoy v. Hydraulic Press Brick Co.
| Citation | 186 S.W. 1133,193 Mo. App. 612 |
| Decision Date | 12 June 1916 |
| Docket Number | No. 12087.,12087. |
| Parties | POPEJOY v. HYDRAULIC PRESS BRICK CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
Action by Margaret Popejoy against the Hydraulic Press Brick Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded.
Deatherage & Guthrie and Goodwin Creason, all of Kansas City, for appellant. T. J. Madden, of Kansas City, for respondent.
Plaintiff's husband was killed in an elevator in defendant's mining shaft while in its employment. She brought this action for damages and obtained a verdict for $8,260, but remitted $760, and judgment was rendered for her for $7,500.
The mining was carried on for a certain quality of clay suitable for defendant's business, and the shaft, if considered one, was divided into two divisions, known as the north and south shafts, which were 213 feet deep. Deceased was in the south elevator and was killed by it falling to the bottom with him. The shaft had two 4×6 wooden guides fastened to its sides from top to bottom by which the elevator was held in place and in which it worked. Each elevator was run by its own cable, though worked over one drum. The elevator in question (perhaps both) was provided with a safety device consisting of metal clamps provided with teeth, so that they would catch in the guides and prevent the elevator from going to the bottom if the cable rope broke. The immediate cause of the fall of the elevator was that one side of the shaft, for reasons we need not detail, had inclined inwardly at one place and thereby, to some extent, lessened its width, and this made it noticeably difficult for the elevator to pass at that point, and in the instance in controversy the strain broke the cable, when the elevator fell to the bottom and killed deceased.
The points of negligence pleaded which were relied upon at the trial were three: First, the shaft, at the point where the cage or elevator became fastened, was swollen and displaced so as to obstruct its passage. Second, the cable rope was old, rusted, and rotten where it was fastened into the socket. Third, the safety devices would not take hold of the guides and prevent a fall of the cage or elevator because the teeth of the devices were worn and the spaces between the same were filled with rust and other substances.
Defendant offered a demurrer on the ground that there was no evidence of negligence in either of the respects specified. It was refused. As to the first and second grounds the refusal was proper. We think there was evidence clearly making those specifications questions for the jury. But the third is not so easily disposed of. The evidence shows that the safety device, sometimes from causes not to be provided against, will fail to perform its function of clasping the upright guides; at least, that the failure will sometimes arise from causes not properly attributable to negligence. In this instance plaintiff seeks to fasten negligence on defendant by evidence in her behalf that the spaces between the teeth of the device had been allowed to fill with rust and other substances up to the top of the teeth, which made it impossible for them to automatically take hold of the wooden guide upright and thereby arrest the fall of the elevator. The evidence does not show, perhaps such a thing could not occur, that the spaces between the teeth were so completely filled as to hide the teeth from sight, and we do not understand how it could be that these spaces were filed with substances, hard enough, and solid enough, to prevent the teeth from pushing out far enough to take hold of the guide or at least marking it, and yet these substances leave the guides unscarred. These considerations lead to the conviction that this specific negligence was not proven, and that the device failed to work...
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