Taul v. Askew Saddlery Co.

• Decision Date: 07 March 1921
• Docket Number: No. 13906.,13906.
• Citation: 229 S.W. 420
• Parties: TAUL v. ASKEW SADDLERY CO.
• Court: Missouri Court of Appeals

229 S.W. 420

TAUL v. ASKEW SADDLERY CO.

No. 13906.

Kansas City Court of Appeals. Missouri.

March 7, 1921.

Rehearing Denied April 4, 1921.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Benjamin M. Taul against the Askew Saddlery Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lathrop, Morrow, Fox & Moore, of Kansas City, for appellant.

Walsh & Aylward, of Kansas City, for respondent.

BLAND, J.

This is an action for personal injuries., Plaintiff recovered a verdict and judgment in the sum of $5,000, and defendant has appealed.

Plaintiff was injured by what is known as a Randall Power Press, owned by the defendant in its six-story harness factory in Kansas City, Mo. The machine was being used for pressing and molding ends of leather traces, and was electrically operated. It had two horizontal planes, the top one being stationary and the lower one movable. These planes were 7 or 8 inches wide and 24 inches long. Molds were attached to the bottom side of the upper plane and the upper side of the lower plane. The mold that projected upward had a small peg in its center; the end of a leather trace with a hole in it was fitted over this peg. The lower plane was then moved upward, causing the molds to come together, completing the pressing operation. The machine was placed in motion by the operator putting his right foot on the treadle attached to it. The treadle was situated about 3½ inches above the floor and 10 inches to the right of the center of the machine. This operation caused the loose pulley or flywheel to come in contact with the stationary friction on the shaft. This loose pulley got its power from a belt, which was attached to the general power. The press would stop at any place the operator's foot was taken off of the treadle, unless the movable plane had made a complete revolution or return. When the molds came together they would not be released except by pressure of the foot on the treadle, which separated them and caused the movable plane to return. The machine was 12 or 15 years old, and had not been repaired for 7 years. Defendant had no machinist to take care of such machines, but the machinery was looked after by some harness maker employed in the factory, who understood machinery.

Plaintiff, relying upon the res ipsa loquitur doctrine to sustain his case, introduced the following testimony in chief: Plaintiff testified that he was a man 48 years of age on September 30, 1918, and had been in the employ of the defendant for four or five months in the harness department. It was his regular duty to run a machine known as the iron harness maker. On the morning of said day, after he had finished his regular work, his foreman informed him that they were short of help. The foreman then put him to work at the Randall Power Press, pressing and molding cable trace ends. He had never operated this leather press machine more than 20 or 30 minutes at any time. This was not his work. He had helped oil similar machines at the direction of the foreman but had nothing to do with the mechanical operation of the one in question. This machine was run by a regular pressman and had been operated about 10 days before by a Mr. Handy. Plaintiff had been working upon this press not to exceed 30 minutes when his hand was caught. He had pressed out 25 or 30 cable trace ends. At times when the leather was pressed it became so tight in the mold that it became necessary to remove it with an awl, which was furnished him for that purpose.

Just prior to his injury he had pressed a trace end, had taken it out of the mold with the awl, had laid it down on the side of the table, had picked up another trace, and was placing it over the peg in the mold when the movable plane started upward without any effort on his part and without any warning. His fingers were caught between the mold on the movable plane and the stationary mold on the upper plane of the machine. He did nothing to start the machine. He was doing the work in the ordinary and customary way, and as he was directed to do the same. He did not know the machine was out of order, and this was the only time it "repeated" while he was working on it. It took 10 pounds of pressure from the operator to start the machine in the regular way. At the time of his injury plaintiff was standing in front of the machine with his feet upon the floor. After the injury the press had to he released from plaintiff's hand with a bar applied to the friction pulley.

Plaintiff's witness Handy testified that during the month of September and until about 10 days before plaintiff's injury, he ran the leather press in question as its regular operator; that soon after he started to work upon the press he noticed that it did not run like similar presses, that it worked much harder and at times it would "repeat." By "repeating" he meant that after pressing his coot upon the treadle which operated the Dress so that it would make one revolution, it would immediately make a second revolution without any apparent cause, and while his foot was upon the floor and off of the treadle. He reported this condition to his foreman and to the superintendent. Thereupon they operated the machine 10 or 15 minutes. He testified that the machine "repeated sometimes every time I worked upon it." He came very near being caught in it a time or two himself on account of the machine repeating without any warning.

Defendant's evidence tended to show that the machine had been examined before the injury, and found in good condition, and that defendant continued to operate the same without any repairs until the time of the trial, which was on June 1, 1920.

In rebuttal plaintiff introduced experienced machinists, who made an examination of the press in question after plaintiff's injury. This examination disclosed that the bearing of the flywheel was worn 3/16 of an inch, and that the flywheel was so loose that it wobbled as much as a quarter of an inch. This flywheel was the one which communicated power to the machine through a belt that ran over its circumference, the other end of the belt being attached to the general power machinery in the plant. The worn bearing in the flywheel caused it to form something similar to an eccentric upon its hub. The running of the flywheel in this manner caused friction and expansion, and when the wheel would get to a certain spot it "picked up this one spot and carries it around." At times in this manner it would pick up a quarter of an inch. This condition would cause the machine to start without any act on the part of the operator of the machine. The same condition could cause the loose pulley or flywheel to press over against the friction pulley which was fastened to a shaft, and, coming in contact therewith, would cause the two to turn over together, starting the machine in that way. The natural operation of the machine was by the operator putting his foot on the treadle, which caused the loose wheel to come over and fit against the permanently attached pulley. A witness who did not see this particular machine, but who stated that he had enjoyed a large experience in operating and repairing Randall power presses, and that they were all alike, testified that the permanently attached pulley was cup-shaped and had the appearance of a spider, and is described "as a part of the clutch; its a friction clutch spider I would cell it"; that when the treadle was operated the loose wheel was pressed over against the friction clutch spider.

In surrebuttal defendant introduced witnesses who had examined the press and found that there was a wearing of 1/16 of an inch between the bearing and shaft of the loose flywheel. One of these witnesses testified that if the wheel had been worn enough for the pulley to calk it would start the press. It was the opinion of these witnesses that the wearing of this wheel was not sufficient to cause the press to start.

In his petition plaintiff alleges that the leather press machine—

"* * * was caused, allowed, and permitted, on account of the negligence and carelessness of the defendant and its agents, servants, and vice principals, without apparent cause and out of the usual manner of its operation, to start into sudden motion and operation, although said leather press machine immediately prior to said time was still, motionless, and not in operation."

Defendant insists that its demurrer to the evidence should have been sustained for the reason that the res ipsa loquitur doctrine cannot be...