The State ex rel. Manker v. Ellison
| Decision Date | 30 April 1921 |
| Citation | 230 S.W. 611,287 Mo. 647 |
| Parties | THE STATE ex rel. CHARLES O. MANKER v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals |
| Court | Missouri Supreme Court |
Writ quashed.
C. W Prince, E. A. Harris, E. C. Hamilton, and James N. Beery for relator.
The decision of the Kansas City Court of Appeals is in conflict with the decisions of the Supreme Court of Missouri and decisions of the Court of Appeal. Hayes v. Sheffield Ice Co., 221 S.W. 707; Wagner v. Const. Co., 220 S.W. 898; Hughes v. Mfg. Co., 188 Mo.App. 549; Cole v. Lead Co., 240 Mo. 408; Lore v. Mfg. Co., 160 Mo. 608.
John H Lucas for respondent.
(1) None of these cases cited by the relator in any manner conflict with the opinion in the instant case. (2) The opinion of the Court of Appeals is fully justified in the principle of law in Huss v. Bakery Company, 210 Mo 51-52; 18 R. C. L. 544; Strode v. Box Co., 250 Mo 728; Cordage Co. v. Miller, 136 F. 495; 26 Cyc. 1255; Benner v. Lumber & Mfg. Co., 56 Wash. 679; Cole Mfg. Co. v. Racine, 43 Ind.App. 695; Honor v. Albrighton, 93 Pa. 475.
In Banc.
Certiorari.
Certiorari to the Kansas City Court of Appeals. 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 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, Revised Statutes 1909 (Sec. 6786, R. S. 1919). It appears from the opinion, Manker v. Standard Oil Co., 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 anyone 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 the board, plaintiff says he stepped on a piece of gas pipe which he did not know was in the shavings on the floor, and this gas pipe rolling under his foot caused him to lose his balance and fall forward thrusting his left hand and arm down against the revolving knives whereby he was injured.
Thus it will be observed that in his pleading he has charged a failure to guard as required by the statute at that time in force, while in his evidence he shows that there was a guard; that the guard was adjustable so made as to permit timbers of different sizes to be planed on said machine; that the duty of adjusting the guard in accordance with the particular timber to be planed was upon the one desiring to use the machine; that it was unnecessary to have the guard raised at all in order to plane this particular board; that had the guard been down close to the surface...
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