Shaw v. Kansas City

• Decision Date: 22 May 1917
• Docket Number: No. 18236.,18236.
• Citation: 196 S.W. 1091
• Parties: SHAW v. KANSAS CITY.
• Court: Missouri Supreme Court

196 S.W. 1091

SHAW v. KANSAS CITY.

No. 18236.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Motion for Rehearing Overruled June 30, 1917.

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

The plaintiff, while employed by the defendant in its asphaltum plant, was injured by coming in contact with bolts or set screws protruding from a revolving horizontal shaft near which he was working. For the injuries so received he recovered judgment against the city in the sum of $20,000. The motion for new trial filed by the defendant city was overruled on condition that the plaintiff remit $5,000 from his judgment. From the judgment accordingly entered for the sum of $15,000 defendant appeals.

The negligence alleged in the petition as the ground for plaintiff's recovery was failure of the defendant to guard the set screws by which he was caught, by placing a covering over them.

The answer, besides a general denial, pleaded two defenses: First, it admitted that the set screws upon which the plaintiff claimed to have been caught were not covered, and that as a mechanical matter it was practicable to have covered them, but alleged that on account of their location defendant was under no legal obligation to put covering over them; second, it stated that plaintiff was guilty of contributory negligence. The exact elements constituting the contributory negligence which would preclude recovery were that the plaintiff had known of the said set screws for a long time, and by the exercise of due care could have arranged his work and place of work in such a way that he would not have come in contact with them, and that by the exercise of due care he could have moved himself in such a manner that he would not have come in contact with them, and that he negligently failed to arrange his work and place of work, and negligently failed to move himself in such manner, and by reason of such negligence contributed directly to his injury, if any he received. The answer then further alleged that the plaintiff failed to use due care to procure medical treatment and to follow medical advice after he received his injuries.

A reversal of the cause is now demanded on the several grounds that a demurrer to the evidence was erroneously overruled, that there were errors in giving and refusing instructions, and that the judgment is excessive.

At the time of the injury defendant was operating an asphaltum plant in which plaintiff was employed; his particular duties being described as oiling machinery and repairing any breaks that might occur. The plant was in a building in which the mixing machinery was on the second floor. Above the mixing machinery, on what might be termed the third floor, were two bins, one containing dust and the other sand which were let into the mixing machinery below them. The dust bin was 2 feet in width east and west and extended in length north and south about 6 feet. It was covered over the top with sheet iron, and it was while on this top that the plaintiff was injured. Adjacent the dust bin on the east was the sand bin which rose about 2 feet higher than the dust bin, so that the top of the dust bin, as seen from above, had the appearance of a wide shelf extending along the west side of the sand bin and 2 feet below its top. The sand bin was not covered. Transversely across and about 37 inches above the dust bin and over the sand bin ran the horizontal shaft which caused the trouble. This shaft operated a revolving sand screen over the sand bin, and was turned by an endless chain running over a sprocket wheel placed above the outer edge of the dust bin. The western end of the line shaft, where the sprocket wheel was attached, was supported by iron braces, called in the evidence the channel iron or bridgetree, which slanted upward from supports at the corners of the dust bin. The bridgetree was held rigid by iron braces which were attached to it some 6 inches from and on each side of the line shaft and extending obliquely downward and away from it. So that on the north side of the line shaft where the plaintiff was injured the space on top of the bin was divided by one of these diagonal slanting braces. The line shaft for some reason had a joint in it called in the evidence a knuckle, and from this knuckle the set screws or bolts protruded three-fourths of an inch. At the north end of the dust bin, and coming down into it, was an inclosed chute, by which dust was dumped into the bin. The dust chute had an opening in the side next to the shaft about 9 inches in diameter, called a peephole, with a movable cover over it. This peephole was a little below the level of the line shaft and about 30 inches above the top of the dust bin. This chute entered the top of the dust bin about 15 inches north of the line shaft and sloped upward to the elevator head, a point about 5 feet above the north end of the dust bin. Many drawings and photographs have been produced in evidence to show the conditions above described. The following diagram will give a fairly good idea of the situation:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This figure shows the appearance looking down upon the top of the dust bin which was 2 feet below the open sand bin. "X" is the place where plaintiff stood at the time he was caught on the set screws. The elevator head at the north end was about 5 feet above the dust bin, and the chute sloped downward so that the peephole was about on a level with the brace which ran within 1¼ inches of it. The line shaft was 37 inches above the top of the dust bin. The piece marked "4" channel" is the bridgetree and sloped upward from supports at the corners to the line shaft apparently at an angle of about 30 degrees. The 1½×½ inch brace running diagonally across the north end of the dust bin is 35 inches above the bin where it was attached to the bridgetree and slanted downward until it was 26 inches above at the point where it crossed the edge of the sand bin. This would give it a slope of approximately 20 or 25 degrees. The triangular space at "X" was the only place where one could stand on the dust bin north of the shaft because of the space taken up by the dust chute on the outer side of the brace.

The sand bin, at the time of the injury, was full of hot sand, and there was evidence that planks were laid across it strong enough to support a man while drawing sand from under the screen. There were bearings to be oiled along the line shaft at the sprocket wheel and near it. The peephole or opening in the dust chute, facing the open space in which plaintiff was caught, was used for the purpose of inspecting the chain and buckets operating in the elevator and repairing the same when they would get out of order. It was necessary for the plaintiff, as oiler, to oil the bearings mentioned about every hour in the day, and in doing so he stepped over or stooped near the revolving shaft. He and others about the plant had use for the peephole in the chute quite often; it is mentioned in the evidence that they would have breakdowns or mishaps sometimes once a month and sometimes every day or two, which required such use. One man was usually employed about the sand bin drawing the sand from under the screen to keep the screen from choking up, and planks were sometimes laid across the sand bin for his protection.

The evidence showed there were different ways of reaching the bearings which required oiling and the peephole in the dust chute when the employés were required to go there. The plaintiff and some of the plaintiff's witnesses testified that the usual way it was done was to climb up a ladder fixed to the wall in the southwest corner of the room and step across from the ladder onto the braces supporting the line shaft, at the south end of the dust bin, and then step across upon these braces from the south end to the north end where the peephole was or to the bearings; that is, this evidence tended to show that the usual method of approach to the place where the plaintiff was actually at work was from the south end, whence he would have to come the full length of the dust bin and across the dangerous line shaft. There was evidence offered by defendant to show that on the day of the injury there was a ladder reaching up from below to the north end of the dust bin by which the employés reached the spot.

Employés of the defendant were frequently at work on the top of the dust bin, particularly in the space opposite the opening in the chute, whenever necessary to make any repairs on the buckets or chain operating the elevator. Several witnesses testified to having seen employés often working about there, not only on the braces which were near the level of the line shaft, but down on the top of the dust bin where plaintiff was at the time he was hurt. There was evidence also going to show that the defendant's foreman himself, Ballintine, had been seen on top of the dust bin. One witness testified that the screws in the knuckle were in the habit of working loose, so that it was necessary to stoop down on the top of the dust bin to pick them up.

The line shaft on which plaintiff was caught moved slowly, turning about 20 revolutions in a minute. It was so disconnected from other parts of the machinery that it continued to run when the elevator in the dust chute was stopped and undergoing repair.

Two witnesses besides the plaintiff testified to having seen him at or about the time he was caught on the set screws, one, Irvin, testifying for plaintiff, and one, Reed, for defendant. According to the plaintiff's version, the injury occurred in about this manner: On that day the endless chain used in elevating the dust got out of order, and the plaintiff, at the direction of the foreman, Ballintine, proceeded to repair it. In order to hold up the chain which carried the buckets he put a crowbar through the peephole in the chute and through a link in the chain on the near side. The...