Tipton v. Barnard & Leas Mfg. Co.

• Decision Date: 20 November 1923
• Docket Number: No. 22345.,22345.
• Citation: 302 Mo. 162,257 S.W. 791
• Parties: TIPTON v. BARNARD & LEAS MFG. CO. et al.
• Court: Missouri Supreme Court

257 S.W. 791

302 Mo. 162

TIPTON v. BARNARD & LEAS MFG. CO. et al.

No. 22345.

Supreme Court of Missouri, in Banc.

November 20, 1923.

Motion for Rehearing Overruled January 4, 1924.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by James L. Tipton against the Barnard & Leas Manufacturing Company and others. From a judgment against the named defendant, it appeals. Reversed.

Connelly, Weld, Walker & Searle, of Rock Island, Ill., and Richard L. Douglas, of St. Joseph (H. A. Weld, of Rock Island, Ill., of counsel), for appellant.

Culver, Phillip & Voorhees, of St. Joseph, for respondent.

SMALL, C.

This is a suit for personal injury by the plaintiff, who was superintendent of the defendant Excello Feed Milling Company, at its plant in St. Joseph, Mo. He was injured by the breaking of a moving belt in an employees' and material elevator in said plant, while standing on a step or platform attached to said belt and while being carried thereon from one floor to another. Said elevator had just been instared, and plaintiff's injury happened while he was riding upon it to test it as to its safety in carrying persons. Plaintiff fell several stories, and was injured.

Said belt was manufactured by the defendant Cutta-Percha & Rubber Manufacturing Company, a foreign corporation, which sold it to defendant Barnard & Leas Manufacturing Company, also a foreign corporation, which in turn sold to defendant Excello Company, a Missouri corporation. The Barnard & Leas Company also furnished plans, a small blueprint, and sold the material for the construction of said elevator in the knockdown, ready to be put together, to the defendant Excello Company, which constructed, erected, and installed said elevator in its building under the superintendence of the plaintiff, as mechanical engineer.

The charge of negligence in the petition is, in substance, that said belt was defective and said materials for constructing said elevator were so negligently prepared and fabricated by the defendant Barnard & Lens Company, to the knowledge of all the defendants, that when put together, and said elevator was installed by defendant Excello Company, and used by the plaintiff, the flanges of the wheels attached to the steps an said belt came in contact with the bottom of a switch box and spreader, connected with said elevator, which caused said belt to break and fall with the plaintiff and injure him.

In vacation, and before answering, the two defendants, foreign corporations, filed a petition and bond for removal to the United States Court, which application was denied. Whereupon said defendants answered, setting up that the state court had no jurisdiction, because defendants had filed a proper bond and petition for removal to the federal court, followed by a general denial; also a plea of contributory negligence on plaintiff's part, and that he assumed the risk in improperly assembling said elevator, and in not ascertaining, before getting on the elevator, that it had been properly installed and equipped and tested and was safe for the use intended.

The answer of the defendant Barnard & Leas Company contained the further defense: That under the contract, between said defendant and the Excello Company, it was provided that said defendant should "not be held liable for any pecuniary damages, except to make good, within a reasonable time, any unmerchantable defects which may have existed in said machinery when furnished."

After the trial had continued several days, and on November 17, 1919, when, at the close of the plaintiff's evidence, the defendant Excello Company so requested, the court gave an instruction in the nature of a demurrer to the evidence, and the plaintiff took a nonsuit, with leave, as to said company. The two nonresident corporations then again filed a petition and bond for removal to the federal court, which was again denied. Thereupon the court sustained a demurrer to the plaintiff's evidence as to the Gutta-Percha Company, and plaintiff took a nonsuit, with leave, as to said defendant.

The contract under which the Excello Company purchased the material for making the elevator from the Barnard & Leas Company was in writing. It consisted of a written order, signed by the Excello Feed Milling Company, by the plaintiff, James L. Tipton, mechanical superintendent. It was dated June 11, 1918, directed to said Barnard & Leas Company at Moline, The order stated:

"Please ship to the undersigned the machinery and material mentioned in the annexed schedule, at and for the price of $4,200, free on board cars at Moline, Illinois, or at factory where made. We agree to pay you said sum * * * in installments as follows, to wit: Upon shipment of machinery $2,100, thirty days after shipment of machinery $2,100. * * * It is understood and agreed that any changes made in said list, necessitating additional cost, shall be made at our expense. You shall not be held liable for any pecuniary damages, except to make good within a reasonable time any unmerchantable defects which may have existed in said machinery, when furnished. If requested, you are to recommend a millwright, or miller to supervise setting up or starting said machinery and the undersigned promises to pay said millwright or miller and each of them his regular wages, plus his living expenses, from the time he leaves until he returns to his headquarters, as well as his round-trip traveling expenses. It is expressly understood, that there are no oral agreements, outside of this written order. Yours respectively, Purchasers, Excello Feed Milling Company, by Jas. L. Tipton, Mechanical Supt."

The schedule described in detail the materials. The acceptance was also in writing, and described the various articles and pieces of material connected with the elevator. The acceptance was received by the Excello Company July 17, 1918.

The elevator consisted of a rectangular iron frame of four posts of 3-inch channel irons. The structure was about 75 feet high. A belt revolved over a pulley at the top and a pulley at the bottom. There were steps attached to the belt to carry persons and material. On the fifth floor, there was attached to the spreader, which was intended brace and hold the channel irons in place, a safety mechanism and switch box. The box was bolted underneath a plate that was a part of the spreader. Attached to this box was a safety device, intended to automatically cut off the motor in the emergency, that any person coming up, if he got to this floor, should forget to get off, a plunger from the step would come out and engage the safety device and stop the motor and belt. If there was material, feed, or something of that kind on the step, it would stop, and keep the sack from going over the top and falling down on the other side. The elevator was operated by a five horse power electrical motor that transmitted power to the top pulley. There were 10 steps approximately 15 feet apart and 16 by 20 inches. The steps were attached to iron wheels, bolted to the axle of such wheels, and the axle was bolted to the belt. The wheels ran in the channel irons to guide and keep the belt in place, when being operated. The flanges of these wheels extended beyond the channel irons, half or three-quarters of an inch. When the belt was moving, these flanges would reach the bottom of the box and be 4 inches above the plunger and thus strike the box, unless placed one-half or three-quarters of an inch away from the channel iron, before the plunger could engage the safety device. The plunger would not come out, or be extended, so as to engage the safety device, unless there was some weight on the steps, some person or material.

Plaintiff, besides being superintendent of the Excello Company, was an experienced mechanical engineer, and in charge of the remodeling of its feed mill at St. Joseph, and of the installation of new machinery therein. He purchased for said company the elevator in question in the knockdown; that is, purchased the materials for its construction, all supposedly fabricated and ready to be put together to form the elevator. The material so fashioned and fabricated was delivered some time prior to January 1, 1919, and on that day the elevator was erected and completed, except that the switch box bad not been connected with the motor, so as to automatically stop the motor. The plaintiff had formerly been a salesman of such elevators in the employ of the Barnard & Leas Company, and was perfectly familiar with the working drawings or plans, and construction and operation thereof. He supervised the erection of the elevator in this case, but the actual work of constructing and installing it was done by the millwrights, Soper & Townsend, employed by the Excello Company. It was the duty of these millwrights, so plaintiff's evidence tends to show, to examine the workmanship and material, as they constructed the elevator, and, if they found any part of it that would not fit or was not properly prepared or fabricated, to change it and see that it was proper, before using it in the work, so as to make a safe machine, or to report any such defect to the plaintiff as mechanical superintendent of the job. It was his duty, as mechanical engineer, as well as of Townsend, to test the safety of the elevator, after it was supposed to be completed, before putting it in use, for the purposes for which it was intended. An installation plan or blueprint, on a very small scale, one-half inch to the foot, was furnished by Barnard & Leas Company to assist in putting the parts together. This blueprint did not indicate that there was any space between the switch box, or spreader, and the channel iron to which they were attached. But it was not a working plan or drawing, showing exact details. The scale was too small to indicate, readily, fractions of an inch. It appears on its face simply to have been intended to show the general and relative location of the different parts....