Simpson v. Witte Iron Works Co.

• Decision Date: 04 March 1912
• Parties: SIMPSON v. WITTE IRON WORKS CO.
• Court: Missouri Court of Appeals

144 S.W. 895

SIMPSON v. WITTE IRON WORKS CO.

Kansas City Court of Appeals. Missouri.

March 4, 1912.

APPEAL AND ERROR (§ 193)—OBJECTIONS—PRESENTATION BELOW—SUFFICIENCY OF PETITION.

An objection that the petition states no cause of action, so as to support a judgment for plaintiff because the statute on which it is based is unconstitutional, is always available.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Benjamin L. Simpson against the Witte Iron Works Company. From a judgment for plaintiff, defendant appeals. Case certified to Supreme Court as involving a constitutional question.

Pierre R. Porter, for appellant. James G. Smart and Charles R. Pence, for respondent.

BROADDUS, P. J.

This is an action for injuries sustained by plaintiff while in the employ of defendant, a corporation engaged in the business of manufacturing gas and gasoline engines. The plaintiff was 42 years of age, with long experience, and was engaged by the defendant as a pattern maker. It was shown that it was the duty of defendant's employés to register by a time clock each day before beginning work. This clock was located in the eastern passageway of the machine shop, running north and south. The aisle was about 10 feet wide. A short while before the day of the plaintiff's injury, the clock was moved from its location on the west side of the passageway to the east side thereof, and about 65 feet further south. From one to three weeks previous to plaintiff's injury, defendant put up an electric motor in this aisle or passageway, and stretched a belt across for a distance of 6 or 7 feet from the motor to a boring machine standing west of the motor and on the west line of the aisle. This belt was used to run the boring machine and was from 4 to 6 inches wide. The lower strand was about 6 inches above the floor, and the upper strand 18 or 20 inches above. The motor and belt stood in the aisle between the old and new location of the clock, about 50 feet south of the old and 12 or 15 feet north of its new location. It left a space about 3 feet wide between the motor and the east line of the aisle. This belt was on and off at different times. On the morning of the day on which plaintiff was injured, the 16th of November, 1909, at about 7 o'clock, he came to the factory to begin his day's work. He first entered the locker room in the northwest corner of the shop, a room provided for the employés as a place to leave their clothing. From there he went in a southeasterly direction through the eastern aisle to the clock to register. There was another aisle known as the main aisle, running north and south through the shop, which was also used by the employés in going to the clock; but there was evidence...