Scheurer v. Banner Rubber Company
| Decision Date | 31 March 1910 |
| Citation | 126 S.W. 1037,227 Mo. 347 |
| Parties | CHARLES SCHEURER, Appellant, v. BANNER RUBBER COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.
Reversed and remanded.
Kinealy & Kinealy for appellant.
The action of the court, in giving at defendant's request instruction 6 and in modifying plaintiff's instruction 1 was erroneous because: (a) The existence of a duty and its violation followed by injury gives a right of action. Longan v. Weltmer, 180 Mo. 322; Graney v Railroad, 140 Mo. 90; Blair v. Railroad, 89 Mo 334; Atkinson v. Railroad, 90 Mo.App. 489; Wheeler v. St. Joseph Co., 66 Mo.App. 260. (b) Uncertainty or difficulty in determining amount of damage does not justify denial of recovery. 8 Am. and Eng. Ency. Law (2 Ed.), 614; Railroad v. Cushney, 95 Tex. 309; The Victory, 15 C. C. A. 495; Reno's Emp. Liab. Acts, p. 351; Gould v. McKenna, 86 Pa. St. 297; Railroad v. Richards, 57 Pa. St. 142; Seeley v. Allen, 61 Pa. St. 302; Weitzman v. Nassau, 53 N.Y.S. 905; Raasch v. Laundry Co., 98 Minn. 357; Jackson v. Railroad, 114 La. 982; Basham v. Hammond Co., 107 Mo.App. 542; Owens v. Railroad, 95 Mo. 169; Webb v. Railroad, 89 Mo.App. 604; Glasgow v. Railroad, 191 Mo. 347; Russell v. Columbia, 74 Mo. 480; Sanderson v. Holland, 39 Mo.App. 233.
Wm. R. Gentry and Watts, Williams & Dines for respondent; Stern & Haberman of counsel.
(1) The plaintiff having failed to prove any negligence on the part of the master, a verdict in his favor could not have been upheld. Hence a new trial should not be awarded plaintiff, even if technical error can be found in the instructions. Mockowik v. Railroad, 196 Mo. 550; Bradley v. Forbes Co., 213 Mo. 320; Moore v. Railroad, 176 Mo. 528; Wagner v. Edison Co., 177 Mo. 44; Lomax v. Railroad, 119 Mo. 192. His sole ground of complaint is that owing to the danger necessarily incident to getting caught between the rollers on the machine where he worked, a safety device had been installed by the defendant to stop the machine quickly in cases of great emergency, and that by reason of defendant's negligence that emergency appliance was allowed to become out of repair so that it did not work when an emergency arose. The doctrine of res ipsa loquitur does not apply. Negligence must be alleged and must be proved as alleged before the plaintiff's case can be submitted to the jury. Beebe v. Railroad, 206 Mo. 421; Glasscock v. Dry Goods Co., 106 Mo.App. 651; Hester v. Packing Co., 84 Mo.App. 454; Breen v. Cooperage Co., 50 Mo.App. 202. In such a case as this the plaintiff, in order to have his case submitted to the jury, must show not only that the appliance was defective and that the defect caused plaintiff to be injured, but he must go further and show either that the master had actual knowledge of the defect a sufficient length of time to have enabled him, by the exercise of ordinary care, to repair the defect, or that if the master had exercised ordinary care in inspecting and looking after the appliance, he would have discovered the defect in time to repair it before the accident. Wojtylak v. Coal Co., 188 Mo. 281; Kelly v. Railroad, 105 Mo.App. 365; Kramper v. Brewing Assn., 59 Mo.App. 277; Pavey v. Railroad, 55 Mo.App. 218; Herbert v. Shoe Co., 90 Mo.App. 305; Seabord Mfg. Co. v. Woodson, 94 Ala. 147; Wilson v. Railroad, 85 Ala. 273; Railroad v. Holborn, 84 Ala. 133; Railroad v. Flannigan, 77 Ill. 365; Rolling Stock Co. v. Wier, 96 Ala. 396; Burke v. Rubber Co., 21 R. I. 446. (2) The action of the court in amending plaintiff's first instruction and in giving instruction 6 at the instance of the defendant does not constitute reversible error. The theory of those instructions is simply that the jury should not attempt to guess or speculate as to how much injury would have been caused to the plaintiff if when his fingers were caught the safety appliance worked properly and stopped the machine, and how much injury was caused as the result of the alleged negligence of defendant in so managing its safety brake that it did not work. This is in accord with the decisions of courts of high authority. Gordon v. Reynolds, 42 Hun 278; Hicke v. Taafe, 105 N.Y. 26; Cagney v. Railroad, 69 Mo. 416.
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 three and one-half or four feet long and two 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 three 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 employees 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 employee by being caught in the machinery. This emergency brake was operated by a horizontal wooden bar or lever, about two and one-half inches wide and one inch thick, located about six 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:
On the afternoon of February 13, 1905, the plaintiff was passing a sheet of rubber, weighing about twenty 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 to 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 employee in the room, hearing him "hollow," and seeing his predicament, pulled down on the emergency brake bar over his machine, but that also failed to cause the machinery...
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