Scheckells v. Ice Plant Mining Co.

• Decision Date: 18 November 1915
• Docket Number: No. 1632.,1632.
• Citation: 180 S.W. 12
• Parties: SCHECKELLS v. ICE PLANT MINING CO.
• Court: Missouri Court of Appeals

180 S.W. 12

SCHECKELLS v. ICE PLANT MINING CO.

No. 1632.

Springfield Court of Appeals, Missouri,

November 18, 1915.

Appeal from Circuit Court, Jasper County; David D. Blair, Judge.

Action by Hanle Scheckells against the Ice Plant Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. M. Sheppard, of Joplin, for appellant. Wolfe & Burnett, of Joplin, for respondent.

FARRINGTON. J.

The plaintiff recovered a judgment for $550 for personal injuries, and defendant has appealed.

The evidence sustains the allegations of the petition that plaintiff was in the employ of the defendant, and that defendant owned and operated a zinc and lead mill, in which there was used for crushing the ore certain crusher rolls. It is only necessary to refer to two of these rolls. They are cylinder-shaped with a diameter of about 36 inches. They roll against each other, and are placed so as, in rolling, to crush into small particles the ore taken from mines, one working with the flange or groove on the other. They are so placed as to roll close together, but attached to them is a tension spring which, when tightened or loosened, permits the rolls to work closer together or farther apart. On the ends are cogwheels which engage each other, and thus the driving power of the mill is conveyed to the rolls. In conveying the power there is also used certain shafts, belts, and pulleys. It is shown that it is no uncommon thing for these rolls to become choked on dirt, boulders, and sometimes on pieces of iron which get into the hopper and are conveyed to the rolls, and that a piece of iron that is too big to go through will stop the rolls with a jerk or chug. It is also shown that when the rolls are choked on iron or other metal there is a difference in the noise made in stopping. The evidence is that when the rolls were choked on dirt the ordinary way employed is to clean them out and then to have a man with an Iron crowbar or rod to pry between the cogs on the end, and by such additional leverage or power exerted thereby start the rolls to working. Also that when the rolls were choked or stopped on iron the ordinary way is to stop the mill and relieve the tension spring and then clean or pick out the iron. One of the witnesses, in speaking of the noise made by the rolls choking and stopping, said:

"We have to go by ear about telling whether it is iron or not. That is the reason we dig out the rolls before we proceed to pry on them with bars."

On the occasion of plaintiff's injury, the defendant's foreman was standing about 15 feet from the rolls when they stopped. Plaintiff and Wentworth, another employe, worked under this foreman and helped him whenever anything went wrong. Wentworth was working at the time on the crusher platform some distance up over the rolls, and when they choked he called. The foreman says he heard the noise when the rolls choked, and knew something was wrong; and it is shown that this foreman (whose name is Box) called plaintiff to come and help him. Box got up on the rolls and cleaned them out. He testified that he didn't know exactly what they were choked on. Wentworth, however, who was never as close to the rolls as the foreman, testified that he knew they were choked on iron, but did not know whether it was a U-bolt nut or a drill. The plaintiff testified that when he came into the mill the foreman was cleaning out the rolls, and that he (the plaintiff) took a short iron bar to pry on the cogwheels when the foreman should get down, and that when the foreman came down he did pry, and that the rolls did not start; that then Wentworth came down, secured a longer bar, and commenced to pry with it alongside the plaintiff, when the cog broke, letting the crowbar which plaintiff was using get all the weight, and that the end flew up and broke his jawbone and two teeth. That he was injured, and that the amount of the verdict is commensurate with the damage suffered, is without controversy. A U-bolt nut was found under the rolls the next day. Plaintiff did not know that the rolls were choked on iron.

The charge in the petition is as follows: "Plaintiff further states that at the time of said accident and injury resulting therefrom to the plaintiff, as aforesaid, the defendant company, by and through its servants and agents then in charge and control of and operating said mill, well knew of the presence of said U-bolt and nut between said crusher rolls, and well knew of the danger to plaintiff attendant upon attempt and effort being made by plaintiff and said Wentworth to unchoke said crusher rolls while said U-bolt and nut were fast between said rolls; that said defendant well knew that said crusher rolls, by reason of said bolt and nut as aforesaid, were not in a reasonably safe condition to be operated or released by plaintiff in the manner and by the means aforesaid. But plaintiff says that the defendant carelessly and negligently failed to notify or warn plaintiff of said unsafe condition of said crusher rolls and of the presence of said U-bolt and nut fast between said rolls, and carelessly and negligently failed and neglected to inform the plaintiff of the danger attendant upon the manner and method by which the plaintiff and said Wentworth endeavored to unchoke said rolls, but carelessly and negligently suffered them to proceed in their undertaking to unchoke said rolls by means of the use of crowbars or certain iron bars, as aforesaid, and the applying of great force by means of said bars upon the cogs of said spur-wheel connection with said rolls, resulting in the breaking of the cogs of said wheel, and the striking of plaintiff, as aforesaid, by said crowbar, whereby plaintiff sustained the injuries as aforesaid."

Theevidence is in conflict on the questions of whether it is dangerous to pry on one of these cogwheels with a crowbar when the rolls are choked on iron, and whether, when they are choked on iron, the method employed in this instance of prying with crowbars was the ordinary and customary manner of relieving the choked condition. The evidence offered by plaintiff clearly tends to show that the method employed at this time was not the ordinary way and was a dangerous way. The plaintiff testified as follows:

"I said when the rolls were choked on iron and both of them stopped that the usual and ordinary way was to shut the mill down and pick it out. I did not know at that time the iron was in there."

Witness Bennett, testifying about when the rolls became choked, said:

"We have to go by ear about telling whether it is iron or not. That is the reason we dig out the rolls before we proceed to pry on them with bars."

This same witness, being recalled, later testified:

"When the rolls are choked on dirt you clean the hopper out sufficiently until you think they will start with a little aid on the bar 4 or 5 feet long. When the rolls are stopped on iron, the usual and ordinary way of starting them then is to back up the tension and let it through if it is a small piece, and if it is so we don't think that loosening the tension will do any good, we shut down, if one roll is choked; if both rolls are choked, it is the best policy to shut down before you burn up the belt."

And on cross-examination:

"There is different things that has caused us to follow the plan of shutting down when the rolls are choked on iron."

Witness Box, testifying for the defendant on the subject, said:

"When the rolls are choked on iron, you don't undertake to start them on a bar—not if I knew it. I did not know at that time the iron was in there, and that was the cause of the rolls getting stopped."

The evidence is also conflicting as to whether the foreman who had charge of and was directing the works knew that the rolls were choked on iron. From the evidence as above detailed it is clearly inferable that he was aware of that fact, that he did have either actual or constructive knowledge of that fact, having heard the machinery stop, and occupying a position immediately afterwards in sweeping and cleaning out the rolls from which he might have seen (one of the purposes of which was to ascertain what the rolls were choked on); and this is emphasized when it is remembered to at Wentworth, plaintiff's fellow workman, knew the rolls were choked on iron, and ha did not have as good an opportunity to ascertain the fact as did the foreman. It must be held that the negligence charged in the petition is fully established, that defendant failed to warn plaintiff by telling him what the rolls were choked on,...