Sanders v. Quercus Lumber Company
| Decision Date | 30 January 1915 |
| Citation | 173 S.W. 740,187 Mo.App. 408 |
| Parties | PERRY W. SANDERS, Respondent, v. QUERCUS LUMBER COMPANY, (a corporation), Appellant |
| Court | Missouri Court of Appeals |
Appeal from Butler County Circuit Court.--Hon. J. P. Foard, Judge.
AFFIRMED (on condition).
M. U Hayden and Sheppard, Green & Sheppard for appellant.
(1) In an action founded upon an alleged violation of Section 7828 R. S. 1909, commonly referred to as the "Factory Act," the burden is upon a plaintiff to both allege and prove the following facts: (a) That the place in which plaintiff was injured was a "manufacturing, mechanical or other establishment." (b) That the belting, shafting, gearing, or machinery by which the plaintiff was injured was so placed as to be dangerous to plaintiff while engaged in his ordinary duties. (c) That, at the time of his injury, the plaintiff was engaged in the performance of one or more of his ordinary duties. (d) That the alleged dangerous agency was not, at the time, guarded, and that it was either possible to have guarded same, or if it was not possible to so guard same, that notice of its dangerous character was posted in the establishment. Strode v. Columbia Box Co., 124 Mo.App. 511; Lang v. Bolt and Nut Co., 131 Mo.App. 146; Huss v. Heydt Bakery Co., 210 Mo. 44; Meiffert v. Sand Co., 124 Mo.App. 491; Miniea v. St. Louis Cooperage Co., 175 Mo.App. 91, 157 S.W. 1006; Millsap v. Beggs, 122 Mo.App. 1; Simpson v. Witte Iron Works, 249 Mo. 376, 155 S.W. 810; Roundtree v. Cement Co., 156 Mo.App. 679, 137 S.W. 1012; Phillips v. Shoe Co., 165 S.W. 1183, l. c. 1190; Saling v. American Chicle Co., 166 S.W. 823; Ward v. City of Norton, 86 Kan. 906, 122 P. 881; Foster v. Paper Co., 71 A.D. 47; Ingram v. Cowles, 150 Mass. 155. (2) The question whether or not all of the elements requisite to constitute a violation of this statute exist may properly become one of law for the court. Meiffert v. Sand Co., 124 Mo.App. 491; Strode v. Box Co., 124 Mo.App. 511. (3) The defense of contributory negligence may properly be interposed in an action based upon the alleged violation of this statute. Colliott v. American Mfg. Co., 71 Mo.App. 170; Smith v. Box Co., 193 Mo. 715; Saling v. American Chicle Co., 166 S.W. 823; Huss v. Heydt Bakery Co., 210 Mo. 44; Simpson v. Witte Iron Works, 249 Mo. 376, 155 S.W. 810; Phillips v. Shoe Co., 165 S.W. 1183; Austin v. Shoe Co., 176 Mo.App. 546, 158 S.W. 709; Stafford v. Adams, 113 Mo.App. 717; Morgan v. Hinge Co., 120 Mo.App. 590; Millsap v. Beggs, 122 Mo.App. 1; Miniea v. Cooperage Co., 175 Mo.App. 91, 157 S.W. 1006. (4) The verdict is excessive. Chlanda v. Transit Co., 213 Mo. 244, 112 S.W. 249; Phillips v. Shoe Co., 165 S.W. 1183; Trent v. Printing Co., 141 Mo.App. 437; Dean v. Railroad, 229 Mo. 425; Partello v. Railroad 217 Mo. 645; Lessenden v. Railroad, 238 Mo. 249; Domineck v. Western Coal & Mining Co., 164 S.W. 567; Devoy v. Transit Co., 192 Mo. 197; Nichols v. Glass Co., 126 Mo. 55; Brady v. Railroad, 206 Mo. 509.
David W. Hill for respondent.
(1) Sec. 7828, R. S. 1909 is not a penal statute and should receive a liberal construction. Lore v. Amer. Manf'g Co., 160 Mo. 621; Strode v. Columbus Box Co., 250 695, 704-5. (2) A sawmill is a manufacturing establishment because it manufactures lumber from logs. It falls within the purview of Sec. 7828, R. S. 1909. Bogard v. Tyler, 55 S.W. 709-905; Rabe v. Consoldated Ice Co., 113 F. 905; Carlin v. Western Assurance Co., 57 Md. 515; Lamborn v. Bell, 18 Colo. 346; Memphis Gas Light Co. v. State, 6 Coldw. (Tenn.) 310; Franklin Meedle Co. v. Franklin, 65 N.H. 177; 26 Vol. Cyc. 530-531-532. ((3) The verdict is not excessive. Henderson v. Kansas City, 177 Mo. 492; Latson v. Transit Co., 192 Mo. 449; Smith v. Fordyce, 190 Mo. 1; Davenport v. King Electric Co., 242 Mo. 111; Campbell v. United Railways Co., 243 Mo. 141; Black v. Railroad, 172 Mo. 177; Fullerton v. Fordyce, 144 Mo. 519; Clark v. Railroad, 127 Mo. 197; Furnish v. Railroad, 102 Mo. 438; Cobb v. Railroad, 149 Mo. 609; Malloy v. Railroad, 173 Mo. 75; Longan v. Weltmer, 180 Mo. 322; Copeland v. Railroad, 175 Mo. 605.
--Plaintiff recovered a judgment for $ 7500 on account of personal injuries and defendant has appealed. The plaintiff, about thirty years of age, was in December, 1912, working for the defendant in Butler county. At the time the defendant owned two sawmills designated as number 4 and number 3. They were three-fourths of a mile apart. On the 17th day of that month the plaintiff went from mill number 4 to mill number 3, at which latter place he was working at firing the boiler and looking after the engine and in doing this it necessitated repeated trips to be made between the engine and boiler and in order to do this it was necessary to pass over a two inch line shaft about eighteen inches above the ground. On this line shaft was a collar of a belt pulley that had been broken leaving some of the broken spokes of the wheel thereon, and there was also a set screw on the shaft, all unguarded. Number 3 mill had a short time prior to the accident been constructed and a floor placed in a portion of it which if it had been extended would have completely covered this line shaft. The mill had been sawing and piling up lumber for something like a month before the accident. The plaintiff was passing from the engine to the boiler and over this line shaft when the old collar, or the set screw, caught in his clothing, taking him around with the shaft ten or twelve revolutions, hitting him against the ground, tearing his clothing off of him about the middle of his body, rendering him unconscious, permanently injuring one of his ankles, almost destroying the hearing in one of his ears and causing injuries which affected his memory.
This action is based on section 7828, Revised Statutes 1909, requiring shafting in all manufacturing, mechanical and other establishments when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties to be safe and securely guarded when possible.
The defendant now contends that its mill number 3, was a mere shifting contrivance that is temporarily located in the woods to work up a small part of the there available saw timber and then to be shifted to another place for the same purpose, and that, therefore, it does not come within the scope and intent of the statute. This contention cannot be upheld because the defendant's only witness testified that the mill was about ninety feet long and about eighteen feet wide and that it was running on the date of the trial, sixteen months after the accident to plaintiff.
The defendant contended at the trial and now argues here that mill number 3 was not completed and a going concern so as to come within the provisions of that law, but the testimony in behalf of plaintiff was to the effect that the mill had been producing and piling up lumber for sometime prior to the accident. The machinery was permanently located. The defendant offered only one witness, its theretofore sawyer, who testified that the buildings of the mill proper had not been completed at the time of the accident and that the only thing it had been run for was in cutting for building purposes and that if the floor had been completed the shaft would have been under it. This is not similar to the case of Foster v. International Paper Co., 71 A.D. 47, 75 N.Y.S. 610, cited and relied on by the appellant here, where the construction on the shaft was in progress when the accident occurred. Defendant's witness did not testify that when the work on the construction of the mill is completed that the floor will be extended over this shaft. The defendant did not undertake to prove that it intended to extend the floor over this shaft. A witness for plaintiff testified that the shaft could have easily been protected. We hold that upon these facts defendant comes within the purview of the statute.
While it is not necessary for us to go to that extent it may be said that if the defendant was cutting material with this mill for its completion, the shaft being permanently located, that then it was engaged in manufacturing within the meaning of the statute where so dangerous a shaft as the one here in question, could have been protected with so little trouble and expense. The statute is remedial and highly salutary (Cole v. North American Lead Co., 240 Mo. 397, 407, 144 S.W. 855, and Strode v. Columbia Box Co., 250 Mo. 695, 704, 158 S.W. 22) and it appears that there is good reason for holding that when a manufacturing establishment is operating its plant in the same manner in which it would run it after completion for commercial purposes that under the circumstance here disclosed it should have protected the shaft that caused the injury.
Again it is contended by defendant that the plaintiff was not engaged in his ordinary duties when injured but the testimony is conflicting upon that point and the jury has resolved it in favor of the plaintiff, hence this point is ruled against defendant.
It is said the judgment should be reversed and the cause remanded for the reason that the verdict is so excessive as to be evidently the result of passion and prejudice. The above reference to the injuries of the plaintiff are sufficient, in my opinion, to justify the amount of the verdict, and especially since the trial court, who saw plaintiff and heard him testify, has refused to disturb it.
Numerous other questions are raised, such as contributory negligence and alleged improper remarks of counsel for respondent in his argument to the jury but all of these questions have been considered and found to be so lacking of merit as to...
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