Scherer v. Bryant

• Decision Date: 04 March 1918
• Docket Number: No. 18540.,18540.
• Parties: SCHERER v. BRYANT et al.
• Court: Missouri Supreme Court

201 S.W. 900

273 Mo. 596

SCHERER v. BRYANT et al.

No. 18540.

Supreme Court of Missouri, Division No. 1.

March 4, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by William F. Scherer against Harriet Bryant and another. From an order granting a new trial after a directed verdict for plaintiff, defendants appeal. Affirmed and remanded.

Harding, Murphy & Harris, of Kansas City, for appellants. James H. Harkless and Samuel M. Carmean, both of Kansas City, and Charles L. Dort, of Falls City, Neb., for respondent.

BLAIR, J.

This is an appeal from an order granting a new trial after a directed verdict in an action respondent brought for damages for injuries received while aiding in banding an armature owned by appellants. Respondent was experienced in work of this kind. His employer, the R. W. Hodge Electrical Company, was repairing machinery used to generate electrical current for appellants' building. The armature was fixed upon an extension of the drive wheel shaft of an engine in the same room. Appellants' regular engineers operated the engine when necessary to operate it in the progress of the repairs.

It is contended (1) there is no evidence of negligence; (2) respondent was guilty of contributory negligence; and (3) appellants are not liable for the negligence, if any, of the engineers.

I. In banding the armature it was essential that the wire be drawn very tight. It was first attached to the armature, and then passed through a clamp fixed near by and designed to give the necessary tension. Respondent's duty was to "guide" the wire. This was necessary. He took the 10 or 12 pound loop or coil of wire, and unwound 10 or 12 feet of it, letting this loose wire lie upon the floor. He then stepped back 30 or 35 feet from the clamp and placed the coil upon his arms. In this situation the operation of the engine would cause the armature to revolve, the wire to be wrapped about it, and the wire to be drawn through the clamp. As soon as the slack wire was drawn through the clamp the wire would commence to be drawn from the coil upon respondent's arm, and he could, if the movement were sufficiently slow, "guide" the wire, permitting it to unwind from the coil and keeping it straight and untangled as it passed through the clamp. On a previous occasion the engineers had shown they could so operate the engine as to revolve the armature a few inches and then stop it immediately. Respondent saw this done. When the banding of the armature was about to begin they were asked if they could so operate it as "just to turn it over." They said they could and that they would; that they would run it as slowly as they could. They also said they could stop it immediately on signal and would do so. With respondent in the position mentioned, the signal to start the engine was given by respondent or his foreman. It was started suddenly, and the armature commenced to revolve somewhat rapidly, taking up 13 or 14 feet of wire at each revolution. Respondent almost at once called to the engineers to stop the engine. This was not done until the armature had made several revolutions. Respondent, as the wire was drawn rapidly through the clamp, having called for the stop, approached the clamp, the coil of wire still upon his arms. It is a fair inference he could not unroll the wire as rapidly as it was being drawn through the clamp. When within a few feet of the clamp, respondent perceived the stop was not going to be made, and endeavored to disengage his hands from the coil. He was unable to do so in time, and his hands were drawn against the clamp and his fingers severed by the wire drawing them against the clamp and cutting through them. The sudden starting of the engine was due to the fact that when the start was made the engine happened to be "on center," and considerably more than the usual power was necessary to put it in motion. Respondent was not aware of this. The engineers were. The failure to stop more quickly was due to the speed at which the engine was started and the shutting off of the steam so that the engine could not be reversed. This is the tendency of the evidence, viewed from respondent's standpoint.

It is true, except in cases of wanton wrong, there is no negligence if no reasonable man could have foreseen any injury from the act done. But it is not true the particular injury must have been such it could have been foreseen. An act is negligent when in the circumstances some injury to some one reasonably may be foreseen as a reasonable consequence. This being shown, liability attaches "for anything which, after the injury is complete, appears to have been a natural and probable consequence." Benton v. St. Louis, 248 Mo. loc. cit. 110, 154 S. W. 473, 477, and cases cited.

Whether a reasonable man ought to have foreseen injury to respondent upon a sudden starting of the engine and a failure to stop on signal, as promised, was a question for the jury in this case. That respondent would be drawn into the clamp unless he rid himself of the heavy coil of wire in time was a certainty. Whether, in view of the promise to stop, he would rely upon that promise too long, as he did, or would see his danger in time, as he did not, and, being rapidly drawn toward the clamp, would be injured by it, is, in our opinion, not to be...