Strode v. Columbia Box Company

• Citation: 158 S.W. 22,250 Mo. 695
• Parties: GARRARD STRODE, Administrator Estate of JOHN FINDLAY, Appellant, v. COLUMBIA BOX COMPANY
• Decision Date: 31 May 1913
• Court: Missouri Supreme Court

158 S.W. 22

250 Mo. 695

GARRARD STRODE, Administrator Estate of JOHN FINDLAY, Appellant, v. COLUMBIA BOX COMPANY

Supreme Court of Missouri, First Division

May 31, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.

Affirmed.

A. R Taylor for appellant.

(1) The court erred in sustaining a demurrer to the evidence at the close of the evidence for plaintiff. The demurrer to the evidence admits the truth of every fact which the evidence tends to prove, an axiom of decision in this State. Wilson v. Board of Education, 63 Mo. 140; Strauchon v. Railroad, 232 Mo. 595. (2) If a fair mind may draw inferences from the evidence as tending to establish the issue, the case should go to the jury -- another settled rule of decision. Eckhard v. Railroad, 190 Mo. 611; Powers v. Transit Co., 202 Mo. 280; Ellis v Railroad, 234 Mo. 673. (3) This case was a case for the jury upon the common law ground of negligence, as well as the statutory ground. A clear case of negligence at common law, as well as under the statute, was made when it was shown, as it clearly was shown, that the belt in question was worn, riveted and reglued to prevent its coming apart. It is no answer to say that the master, by his agents having charge of the repair of the belt, couldn't anticipate what particular damage a broken belt would inflict or who would be injured. "If the injury follows as a direct consequence of the negligent act or omission, it cannot be said that the actor is not responsible therefor because the particular injury would not have been anticipated." Harrison v. Electric Co., 195 Mo. 606; Hoepper v. Hotel Co., 142 Mo. 388; Graney v. Railroad, 140 Mo. 98; Smith v. Railroad, L. R. 6 C. P. 20. (4) The statute on which the plaintiff relies as part of his ground of recovery has been adjudged constitutional according to its terms and language. Lore v. Mfg. Co., 160 Mo. 622; Durant v. Coal Co., 97 Mo. 62; People v. Warden, 144 N.Y. 529; People v. Smith, 108 Mich. 531. (5) A failure to comply with the statute according to its terms is negligence per se. The statute is remedial. Calliott v. Mfg. Co., 71 Mo.App. 171; Lore v. Mfg. Co., 160 Mo. 622; Strode v. Box Co., 124 Mo.App. 516. "No less measure of diligence can be written into the statute. When meaning of statute is clear courts have no power to make qualifications or additions to cover seemingly omitted cases." Durant v. Coal Co., 97 Mo. 65; Lore v. Mfg. Co., 160 Mo. 624.

Seddon & Holland for respondent.

The court did not err in giving the peremptory instruction in this case at the close of plaintiff's testimony for the following reasons: (1) There was no testimony to sustain the common law charge of negligence in reference to the belt. On the contrary the plaintiff's witnesses showed that the belt just prior to the accident was in good condition. (2) In reference to the charge of statutory negligence in failing to guard the belt, the statute contemplates that belts in certain cases shall be so guarded that persons may not be injured by coming in contact with them while in operation. It does not require belts to be so guarded that persons may not be injured by them in case the belts break and fly out of their usual circuits. Neeman v. Smoth, 50 Mo. 525; Fusz v. Spaunhorst, 67 Mo. 256; State v. Hayes, 81 Mo. 574; Potter v. Douglas County, 87 Mo. 239. (3) In no event did the plaintiff show that the defendant was guilty of any violation of the statute in reference to belts because the plaintiff failed to show that the belt in question was dangerous to persons while engaged in their ordinary duties. On the contrary the testimony introduced by plaintiff showed that the belt was not dangerous, that is that the breaking of said belt was a most extraordinary occurrence, and could not reasonably be anticipated. Findlay v. Columbia Box Co., 124 U.S. 511; Hindle v. Birthistle, L. R. 1 Q. B. 1897; Dillon v. Coal Tar Co., 181 N.Y. 215; Cement Co. v. Insurance Co., 152 N.Y.S. 1068; Byrne v. Carpet Co., 61 N.Y.S. 741; Glassheim v. Printing Co., 34 N.Y.S. 69; Polawske v. Brick Co., 110 Wis. 461; Robertson v. Ford, 164 Ind. 538. (4) The statute in reference to guarding belting, Sec. 6433, R.S. 1899, after providing that belts shall be guarded under certain circumstances, specifically defines what shall constitute a violation of the statute. It provides in substance that whenever the Commissioner of Labor shall notify the proprietor of a plant that a belt is dangerous to employees and insufficiently guarded, and such proprietor of a plant shall thereafter fail to guard same, then such failure shall be deemed a violation of this article. Where the statute specifically defines what shall constitute a violation the idea is definitely excluded that any other act shall constitute such violation. State v. Fisher, 119 Mo. 344; State v. Gritzner, 134 Mo. 512; State v. Winthrop, 133 Mo. 500; Miller v. Wagner, 18 Mo.App. 14; Grumley v. Webb, 44 Mo. 444; Dart v. Bagley, 110 Mo. 42; State v. Schumann, 133 Mo. 111; Endlich on Interpretation of Statutes, sec. 216; Rozelle v. Harmon, 103 Mo. 399; State v. Schumann, 133 Mo. 111; State v. Reid, 125 Mo. 43; State v. Railroad, 19 Mo.App. 104; Jackson v. Railroad, 87 Mo. 422; Borck v. Bolt & Nut Works, 111 Mich. 129; Monforton v. Brick Co., 113 Mich. 39; Greenhaus v. Akter, 30 A.D. 585; Pauley v. Steam Gauge Co., 131 N.Y. 87; In re Fire Escapes, 2 Pa. Dist. Rep. 623; Perry v. Bangs, 161 Mass. 35; De Genther v. New Jersey Home, 58 N. J. L. 354.

OPINION

BROWN, C.

This is an action to recover damages on account of injuries to plaintiff, an employee in defendant's box factory in St. Louis, from being struck on the head by a broken belt while operating a wood matching machine in the factory. At the close of the plaintiff's evidence the court instructed peremptorily for the defendant. This appeal is taken from the judgment of non-suit forced upon plaintiff by this action, and, which, upon motion duly filed with leave, it refused to set aside.

The plaintiff was employed in operating a wood working machine, called a matcher, in the basement. The mandrel of this machine made from twenty-nine hundred to three thousand revolutions per minute and seems to have been driven from a shaft hung upon the floor system overhead. This shaft was, in turn, driven by the belt which was the direct cause of the accident. This belt was of leather, forty-three feet ten inches long, ten inches wide and from one fourth to five six-teenths of an inch thick. It was built in sections from four to seven feet in length, fastened together with laps in which about eight inches of the ends to be joined were bevelled uniformly to an edge at the ends and glued, so that the joint so made was of uniform thickness in all its parts and with the rest of the belt. The thin edges of these laps would sometimes loosen up and "ears" would turn up. This would be indicated by a buzzing sound easily detected, and which it was the duty of the operator to report, when it would be reglued so far as necessary by the machinist. This belt passed around a pulley upon the shaft hung beneath the floor above the plaintiff's machine, at an elevation about eighteen inches higher than his head when standing, and up through the floor into the room above, and thence to its driving pulley somewhere in that room. There were from five to seven "idlers" over which this belt ran. These are pulleys through which no power is transmitted but are used simply to deflect or tighten the belting. The belt broke with a ragged tear across the material outside the laps and came off its pulleys into the basement, striking plaintiff on the head with sufficient force to injure him seriously. The petition states that the belt was so placed as to be dangerous to the plaintiff while engaged in the ordinary duties of his employment, and charges negligence as follows:

"And the plaintiff avers that said belting was not safely or securely or otherwise guarded as required by the statute, although it was possible and practicable to do, which violation of the statute of Missouri directly caused and contributed to the plaintiff's said injuries. And for another and further assignment of negligence, the plaintiff avers that said belt was old, worn, rotted and patched, as the defendant and its servants charged with the duty of keeping said belt in repair well knew before the injury to the plaintiff aforesaid. Yet defendant and its said agents negligently failed to supply a proper and secure belt, and negligently provided said belt in said defective condition, where plaintiff was to work about in the discharge of his said duties. And the plaintiff avers that said belt was so caused to give way and break and injure the plaintiff by reason of its said defective condition."

There is no evidence that this break occurred on account of the age of the belt, or because it had been weakened by age, or was worn, or rotten, or patched. The pulley above plaintiff's head, from which the belt ran off and struck him, was between two of the floor timbers, but there was no guard or structure beneath it, so as to intervene between it and the defendant's head.

I. The plaintiff failed to prove the defective condition of the belt in any of the respects charged in the petition. It is true one of the witnesses used the expression "it was an old belt," but the same witness afterward qualified the statement by saying that it was a comparatively new belt, about five and a half months old, and there was no evidence that it was worn so as to make its continued use improper or negligent, or that it was rotten or patched. The charge that the belt was defective was expressly limited in the petition to these specifications, which, under the well settled rule in this State, limit the...