The State ex rel. Boeving v. Cox

• Decision Date: 06 October 1925
• Docket Number: 25763
• Citation: 276 S.W. 869,310 Mo. 367
• Parties: THE STATE ex rel. HUGH BOEVING et al. v. ARGUS COX et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

276 S.W. 869

310 Mo. 367

THE STATE ex rel. HUGH BOEVING et al. v. ARGUS COX et al., Judges of Springfield Court of Appeals

No. 25763

Supreme Court of Missouri

October 6, 1925

Opinion of Court of Appeals quashed.

J. C Sheppard and Arnot L. Sheppard for relators.

Although the evidence shows that Petty thrust his hand into the interior of this machine through a hole in the northern end of it, grasped a stick protruding from the hole in the screen, and while attempting to pull the stick loose lost his fingers, respondents held in their opinion that the hole in the screen might be considered by the jury as the proximate cause of Petty's injury. So far as the evidence discloses, that hole might have remained there for any length of time and Petty would never have been injured, had not his own act of thrusting his hand inside the machinery intervened, and but for which the injury would not have occurred. In so holding, respondents' opinion is in conflict with the following last and controlling decisions of this court on that question: Van Bibber v. Swift & Co., 286 Mo. 317; Harrison v. Elec. Light Co., 195 Mo. 623; Smith v. Forrester-Nace Box Co., 193 Mo. 715; George v. Mfg. Co., 159 Mo. 333; Doerr v. Brewing Assn., 176 Mo. 547; Nugent v. Milling Co. 131 Mo. 241.

Jerry Mulloy and W. A. Welker for respondents.

(1) An alleged error not assigned or considered by the Court of Appeals cannot be reviewed by the Supreme Court on certiorari. State ex rel. Shaw Transfer Co. v Trimble, 250 S.W. 388; State ex rel. United Rys. Co. v. Allen, 240 S.W. 117. (2) On certiorari to quash record of Court of Appeals for conflict with decisions of the Supreme Court, the Supreme Court cannot review the facts, except so far as stated in the opinion of the Court of Appeals and cannot dig out of the record facts not stated in order to overturn the opinion. State ex rel. Ins. Co. v. Allen, 243 S.W. 839; State ex rel. Presnell v. Cox, 250 S.W. 374; State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 384; State ex rel. Raleigh Inv. Co v. Allen, 242 S.W. 78; State ex rel. Ry. Co. v. Allen, 236 S.W. 870. (3) Even though plaintiff knew of the danger and that unless careful he might be injured, yet continuing to work after a promise to repair the defect by the foreman, is not contributory negligence, unless the danger was so threatening and obvious that no reasonable person would do so. Cole v. Transit Co., 183 Mo. 81; George v. Railroad Co., 225 Mo. 364; Bunkard v. Rope Co., 217 Mo. 481; Evans v. Gen. Explosive Co., 239 S.W. 493; Hammond v. Coal Co., 156 Mo. 232; Van Bibber v. Swift & Co., 228 S.W. 691. (4) Even though the plaintiff could have stopped the machine and removed the stick in perfect safety that does not convict him of contributory negligence because he adopted a more dangerous method. Wagner v. Const. Co., 220 S.W. 897; Hutchinson v. Safety Gate Co., 247 Mo. 494. (5) Whether the plaintiff, by grasping the protruding end of the stick with his right hand in an attempt to remove it from the hole in the screen, was guilty of contributory negligence was eminently a question for the jury. Edwards v. State & Mfg. Co., 221 S.W. 747; Hughes v. Const. Co., 176 S.W. 534; Brown v. Plaing Mill Co., 214 S.W. 262; Hill v. Cotton Oil Co., 214 S.W. 422.

OPINION

Blair, J.

Rufus Petty recovered judgment in the Circuit Court of Butler County against his employers, the relators here, for $ 5,000 for personal injuries sustained through alleged negligence. Appeal was granted to the Springfield Court of Appeals, where the judgment was affirmed. Relators now seek to quash the opinion of respondents.

Petty was employed as a cotton ginner in relator's gin near Poplar Bluff. In attempting to pull a stick out of a hole in the screen of the boll extractor, he lost four fingers off his right hand. Respondents considered only one allegation of negligence contended in the petition, to-wit:

"That in a wire netting, or drum, a hole of about four inches was worn in the north end of the drum which permitted cotton and sticks to become lodged and interfere with the operation of the machine, and on the occasion that plaintiff was injured a stick about one inch in thickness and six inches in length lodged in this hole, and that as plaintiff took hold of the stick to remove it, it was knocked against the saws which were running in the extractor and injured his hand. Plaintiff further alleged that he notified the defendants of the defective condition of the wire netting or cylinder, and defendants promised to render the machine fit and safe and directed him to continue the operation thereof."

We quote from respondents' opinion for the facts, as follows:

"The plaintiff testified that he was injured at the north end of the north machine in the ginhouse, there being three of these boll extractors in the ginhouse at the time, one of which was not being used. The gin stands directly under this boll extractor, the front and back legs of the boll extractor resting on top of the gin stand. The entire north end of the boll extractor is composed of metal. Near the center of the north end of the machine is an opening which, according to respondent's testimony, is somewhat triangular in shape and about eight or nine inches wide and about thirteen inches long. It was through this opening the plaintiff reached his hand at the time he lost his fingers. Respondent testified that there was nothing across the opening on the outside, but possibly a belt which went over the pulleys which operated the machine. A photograph was exhibited by appellants which was practically admitted as representing the machinery and where the holes and belts were, and it showed that a belt did run along the whole space of this opening near the bottom of it. The hole was left by the manufacturers of the machine for the purpose of taking out and putting in what are known as vibrator boards, which are placed directly behind the saws and under the brush pulley, which vibrators are for the purpose of separating the hulls from the saws. The hole in the north end of the screen or wire drum, in which the stick hung that plaintiff attempted to remove, was something like twelve inches from the revolving saw that injured the plaintiff.

"The evidence shows that two days before the injury the respondent discovered the hole in the screen and called the attention of one of the owners to it, who promised to fix it. On the night the respondent was working in the capacity of a ginner he heard a noise inside this boll extractor. Walking around to the north end of the machine and looking through the opening he saw a stick protruding through the hole in the screen or drum; he then reached in the north end of the extractor and attempted to pull the stick out of the hole in the drum while the machine was running. As he did that the stick which he had grasped struck something and threw his hand to the right for a distance of about twelve inches into the saws. The evidence of respondent shows that the motive power of this machine was electricity, which was turned off and on by means of a switch located some twenty or thirty feet away. It is shown that he could have stopped the machine to remove this stick by turning off the switch or by throwing the belt. The appellants testified that the instructions given respondent were not to repair or attempt to repair the machine while it was running. This was not denied or affirmed by the respondent.

"The evidence of defendants tended to show that a stick such as plaintiff described in the boll extractor would have stopped the machine from operation. The plaintiff's testimony, however, was to the effect that the stick was in the hole in the screen, and the machine did not stop running when he undertook to take it out."

Respondents stated that only two points were raised upon the appeal. The first related to a question which is not before us. Respondents said: "The other and main contention made is that under the evidence in the case the plaintiff was guilty of negligence in law, and that the demurrer to the evidence offered by the defendants should have been sustained." Respondents then proceeded to discuss the evidence upon the alleged negligence of Petty and held that the question of his negligence was for the jury, and affirmed the judgment below.

I. As we understand relators' position, it is this: Assuming that relators were negligent in permitting a hole to be and remain in the screen after knowledge on their part of its presence and that this hole permitted the stick to protrude therefrom, the respondents held that such negligence was the proximate cause of Petty's injury and, in so holding, respondents' opinion conflicts with controlling decisions of this court.

Respondents say: "The brief and argument of relators now inject a new contention by an insistence that the hole in the screen wall of the cylinder, as a matter of law, was not the proximate cause of the injury. This question was never presented to or passed on by respondents." They say that questions not considered by the Court of Appeals cannot be reviewed by the Supreme Court upon certiorari, and cite State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 384, and State ex rel. United Rys. Co. v. Allen, 240 S.W. 117. Other cases so holding could also be cited since this court has so ruled a number of times.

A study of the opinion fails to disclose any direct discussion or consideration by respondents of the question of proximate cause, which is vital to every action for damages caused through alleged negligence of another. If the rule announced in the cases cited by respondents and similar cases lays down a hard-and-fast rule controlling in all certiorari cases, regardless of the nature of the question, then, of course, we...