State v. Ellison

• Citation: 287 Mo. 647,230 S.W. 611
• Decision Date: 30 April 1921
• Docket Number: No. 22308.,22308.
• Parties: STATE ex rel. MANKER v. ELLISON et al. Judges.
• Court: United States State Supreme Court of Missouri

230 S.W. 611

287 Mo. 647

STATE ex rel. MANKER v. ELLISON et al. Judges.

No. 22308.

Supreme Court of Missouri, en Banc.

April 30, 1921.

Application for writ of certiorari by the State of Missouri, on the relation of Charles O. Manker, against James Ellison and others, Judges of the Kansas City Court of Appeals, to review the opinion of such court in the case of Manker v. Standard Oil Company (203 Mo. App. 404, 221 S. W. 139). Writ quashed.

C. W. Prince, E. A. Harris, E. C. Hamilton, and James N. Beery, all of Kansas City, for relator.

John H. Lucas, of Kansas City, for respondents.

HIGBEE, J.

The application for our writ of certiorari in this cause recites, inter alia, that the respondents, judges of the Kansas City Court of Appeals, have rendered judgment in a certain cause pending in said court on appeal from the circuit court of Jackson county, in which relator was plaintiff, and:

"That said above tribunal in rendering its decision in the cause aforesaid has disregarded and is disregarding the last-reported decisions of the Supreme Court touching the points in issue, which are in direct conflict with the opinion in the case, as will more fully appear in the certified copy of the opinion of said court heretofore rendered, together with the suggestions herewith filed in support of this application." Wherefore your petitioner prays, etc.

The foregoing excerpt is all that is said in the application touching the decision of the Court of Appeals. It does not state that the judgment, of the Court of Appeals was adverse to relator. It does not "set out the issue presented to the Court of Appeals or show wherein and in what manner the alleged conflicting ruling arose." It does not refer to any decision of this court with which the ruling of the Court of Appeals is said to conflict. The application is followed by a statement and suggestions in support of the application, setting forth the allegations of the petition, the statute on which the action is based, and excerpts from the opinion of the Court of Appeals with reference to certain decisions of this court with which it is said the decision is in conflict.

The application does not conform to the requirements of rule 34 of this court (186 S. W. x); but, since the respondent waived the insufficiency of the application and the writ was granted, we will consider the suggestions made by the relator.

Relator sued the Standard Oil Company of Indiana for damages for personal injuries sustained December 18, 1916, as alleged in his petition, while working at its planer, a machine having knives on a cylinder rotating at a high rate of speed, without having any safe and secure covering, guard, or protection to prevent workmen coming in contact with said rotating knives, and carelessly and negligently failed to safely guard said planer.

On the trial of the cause, plaintiff recovered judgment from which the defendant appealed. The judgment was reversed by the Court of Appeals.

The action is based on section 7828, R. S. 1909 (section 6786, R. S. 1919). It appears from the opinion, Manker v. Standard Oil Co., 203 Mo. App. 404, 221 S. W. 139, that defendant provided a guard which could be raised or lowered and kept at any desired height by means of a thumbscrew. When this guard was let down, it afforded ample protection to the workman at the planer.

It further appears from the opinion that the plaintiff undertook to use the planer and found he could not lower the guard; that he was familiar with the use of the machine and knew the danger of operating it without having the guard in proper position; that he did not notify any one of his inability to lower the guard, but, thinking that he could operate the planer, tightened the thumbscrew to prevent the guard falling, placed a heavy plank on the planer, and turned on the power; that while so at work, he stepped on a piece of gas pipe concealed in some shavings, slipped, and fell with his hand and arm on the revolving cylinder and sustained the injuries complained of. The opinion recites:

"He [plaintiff] says that when he took the board to the planer he found the guard was up `too high.' * * * Plaintiff says he tried to get the guard down but it would not move, whereupon, to prevent it coming down on account of the jar of the machinery during the prosecution of the work, he tightened the thumbscrew so it could not do so. He went ahead with the planing of the board, knowing and being fully aware, so he himself says, of the danger of using the machine with the guard thus raised above the table. He says also that the board could easily have been run through the planer with the guard down close to the table top and that it was unnecessary to have it raised any distance therefrom. He says also that he did not notify the superintendent or foreman or any one that the guard would not come down; and there was no evidence that the guard had been so that it would not come down for any length of time prior to this occasion when he tried to lower it.

"In the course of planing the edge of...