Scheurer v. Banner Rubber Co.

• Decision Date: 31 March 1910
• Citation: 126 S.W. 1037,227 Mo. 347
• Parties: SCHEURER v. BANNER RUBBER CO.
• Court: Missouri Supreme Court

126 S.W. 1037

227 Mo. 347

SCHEURER v. BANNER RUBBER CO.

Supreme Court of Missouri, Division No. 2.

March 15, 1910.

Rehearing Denied March 31, 1910.

1. TRIAL (§ 252) — INSTRUCTIONS — APPLICABILITY TO CASE.

Where there was no evidence that plaintiff received any injury prior to the time he pulled an emergency brake, an instruction asking the jury to find whether there was such injury was erroneous.

2. TRIAL (§ 252) — INSTRUCTIONS.

An instruction must have evidence to support it.

3. MASTER AND SERVANT (§ 209) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

Though a servant assumed the risk of getting his fingers caught between the rollers of the machine about which he was working and the ordinary risks incidental to his employment, he did not assume the risk attendant on the failure to operate of a safety brake governing the machine and placed there to diminish the risk.

4. MASTER AND SERVANT (§ 127) — DANGEROUS APPLIANCES — DUTY OF MASTER.

A master installing a safety brake intended to diminish the risk incident to the operation of machinery is bound to keep the brake in operating condition.

5. NEGLIGENCE (§ 61) — PROXIMATE CAUSE — CONCURRENT CAUSES — ACT OF THIRD PERSON.

Where one sustains damages from separate and independent sources, it is the duty of the triers of fact, though the injuries may be concurrent in point of time, to separate, as best they can from the evidence, the amount of damages caused by defendant's negligence, and the difficulty of separating the damages is no bar to a recovery.

6. MASTER AND SERVANT (§ 276) — INJURIES TO SERVANT — SUFFICIENCY OF EVIDENCE.

In a servant's action for injuries evidence held to show that the injuries were the direct result of the failure of an emergency brake to work, and not the direct result of plaintiff's getting his fingers caught in the machinery, though such injuries would not have occurred had his fingers not been so caught.

7. MASTER AND SERVANT (§ 265) — INJURIES TO SERVANT — BURDEN OF PROOF.

In a servant's action for injuries, the burden is on plaintiff to establish directly, or by just inference, some want of care on defendant's part to which the injury might reasonably be traced.

8. NEGLIGENCE (§ 134) — PERSONAL INJURIES — EVIDENCE.

Negligence may be established as well by reasonable inferences from other facts as by more direct means of proof.

9. MASTER AND SERVANT (§ 278) — INJURIES TO SERVANT — NEGLIGENCE — SUFFICIENCY OF EVIDENCE.

In a servant's action for injuries through having his arm drawn between the rollers of a machine, proof that an emergency brake intended to stop the machinery in case of accident failed to work, was prima facie evidence of want of care in its construction or then condition and it was for defendant to rebut such evidence of want of care.

10. MASTER AND SERVANT (§ 124) — INJURIES TO SERVANT — APPLIANCES — INSPECTION.

Inspections by the master at intervals of two or three weeks of a safety brake appliance, designed to almost instantly stop, in case of accident, the machinery operating large rolls into which employés fed by hand rubber sheets, were not as frequent as necessary in view of the danger attending the work.

11. MASTER AND SERVANT (§ 124) — APPLIANCES AND TOOLS — INSPECTION — DUTY OF MASTER.

It is the master's duty to see that proper inspections are made of the machinery, tools, and appliances with or about which his servants are at work.

12. MASTER AND SERVANT (§ 286) — INJURIES TO SERVANT — APPLIANCES — INSPECTION — QUESTIONS FOR JURY.

Where a safety appliance, designed to stop in case of accident machinery operating rolls into which employés by hand fed rubber sheets, could have been tested by simply starting the engine and then pulling down the brake lever of the appliance, which would consume but little time, whether defendant master was negligent in failing to test the appliance every morning was for the jury.

13. MASTER AND SERVANT (§ 276) — INJURIES TO SERVANT — SUFFICIENCY OF EVIDENCE.

In a servant's action for injuries through having his arm caught between the rollers of a machine, evidence held to make out a prima facie case for plaintiff.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Charles Scheurer against the Banner Rubber Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Kinealy & Kinealy, for appellant. Wm. R. Gentry and Watts, Williams & Dines, for respondent.

BURGESS, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis in favor of the defendant, in a suit for damages for personal injuries.

At the time he received his injuries plaintiff was in the employ of the defendant, and was operating a machine known as a "shaping machine," used for working over old rubber stock or the remains of rubber sheets out of which rubber shoe heels had been stamped. The sheet of rubber was first warmed up by passing it through a machine with heated rollers, and after being thus warmed and softened it was passed through the shaping machine. The warming machine and the shaping machine were substantially similar, the difference being that in the warming machine the rollers were heated. The machines consisted of two horizontal metal rollers, about 3½ or 4 feet long and 2 feet in diameter, which were caused to roll towards each other, the space between them at the nearest point of approach being about an inch and a half. The rollers stood about 3 feet from the floor, and the operator of the machine caused the rubber sheet to pass between them from the top, and after passing through and down, the operator reached under the roller, took hold of the projecting end of the sheet of rubber, pulled it up and around the roller nearest him, and then with his left hand pushed the middle of the sheet down between the rollers, just far enough to allow the rollers to grip the sheet which, by the motion of the rollers, is doubled up and passed through as before. This operation was repeated until the rubber stock was thoroughly worked, and in proper condition for use. There were several of these machines set in a row in the room where plaintiff was working, and at the time of the injury a number of other employés of the company were at work in said room. The rollers on these machines were caused to revolve by a cog wheel connection with the line shaft beneath the floor and under the row of machines. An engine was in the room adjoining this room, and the line shaft from which the machines received their power was connected with the main shaft of the engine by a clutch. When the jaws of this clutch were caused to open, the power of the main shaft of the engine was no longer communicated to the line shaft, and the machines would stop although the engine might still be running. Plaintiff had been operating these machines in defendant's factory some four or five months prior to the injury. In the room, and in connection with the machines, was a safety device or appliance called an "emergency brake, to be used in case of an accident or injury to an employé by being caught in the machinery. This emergency brake was operated by a horizontal wooden bar or lever, about 2½ inches wide and 1 inch thick, located about 6 feet above the floor and over the machine. One of these bars or levers was placed over each machine. By pulling down on said lever an electric switch was closed, and a current of electricity caused to pass through an electric lock, a certain part in which lock was thus converted into a magnet, which caused a catch to be released, permitting a heavy weight to pull open the clutch on the line shaft, which line shaft was thus disconnected from the main shaft of the engine. By means of a second electric lock, operated by the same current which passed through the lock controlling the clutch, the steam was caused to be shut off from the engine. If both electric locks were in good order when the current was caused to flow by the act of pulling down on the safety lever over the machines, both locks would operate, and thereby not only would the clutch connecting the line shaft with the main shaft be caused to open, but the steam from the engine would also be shut off. If the emergency brake, as the appliance — including lever, current, wires, and locks — was called, was in good order, the pulling down of the bar or lever over any of the machines would cause the machines to stop almost instantaneously, and the rollers would not thereafter revolve as much as three inches. Tacked on each side of the wooden lever over each machine was a sign reading as follows: "Don't touch this rod unless some one is caught in the machinery or in case of severe accident. Then pull down hard on it, and the machinery will stop. Any one who pulls this rod, when it is not absolutely necessary, will be discharged."

On the afternoon of February 13, 1905, the plaintiff was passing a sheet of rubber, weighing about 20 pounds, between the rollers of his shaping machine. He had passed it through the machine once, and had reached down with his right hand under the machine and taken hold of the sheet as it came through, and had pulled it up and around the roller next him. Then, with his right hand holding the top end of the rubber sheet, and his left hand against the middle, he was pressing the rubber towards the space between the rollers, when, either because the flap slipped out of his right hand and struck his left elbow, or for some other reason, the fingers of his left hand got caught, with the rubber sheet, between the rollers. As soon as plaintiff felt his fingers caught he took hold of the emergency brake bar, which was over his machine, and pulled down on it, but it failed to operate, and he kept pulling until the bar broke. Another employé in the room, hearing him "holler," and seeing his predicament, pulled down on the emergency brake bar over his machine, but that also failed to cause the machinery to stop. Thereupon the...