Turner v. Tyler Land & Timber Co.

• Decision Date: 02 June 1914
• Docket Number: No. 16738.,16738.
• Parties: TURNER v. TYLER LAND & TIMBER CO.
• Court: Missouri Supreme Court

167 S.W. 973

259 Mo 15

TURNER v. TYLER LAND & TIMBER CO.

No. 16738.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

1. COURTS (§ 231)—SUPREME COURT—JURISDICTION.

Where, in an action for injuries to a servant, the amount in dispute is within the appellate jurisdiction of the Court of Appeals, the Supreme Court cannot take jurisdiction, unless some constitutional question was validly raised on the trial and had been undecided by the Supreme Court at the date of the appeal.

2. COURTS (§ 231)—JURISDICTION—SUPREME COURT.

The constitutionality of Rev. St. 1899, § 6433 (Rev. St. 1909, § 7828), providing that belting, shafting, gearing, and drums in all manufacturing establishments, when so placed as to be dangerous to employés, shall be safely guarded, is not an open question; and an appeal to the Supreme Court on that ground alone will be transferred to the Court of Appeals.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by E. W. Turner against the Tyler Land & Timber Company. Judgment for plaintiff, and defendant appeals. Case transferred to St. Louis Court of Appeals.

This is an action for personal injuries alleged to have been sustained by a violation by defendant of the requirements of section 6433 of the Revised Statutes of 1899, to wit:

"Sec. 6433. Belting, etc., to be guarded.—The belting, shafting, * * * gearing and drums, in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments."

The above section, with addition of two words, was carried into, and is now section 7828 of the Revision of 1909.

The evidence tends to show that the plaintiff was employed to run a bolting saw in defendant's stave mill and factory, and, as a part of his duties, was required to clear away and remove within reach of the blow-pipe, so as to be carried off, the dust and trash which fell below the saw in the course of its workings; that the plaintiff was injured on the ___ day of March, 1907, while working under said saw and removing the accumulations of dust and trash, by being struck on the head by the revolution of a clutch coupling which was attached to a horizontal shaft and connected it with the saw. The clutch coupling and the shaft were not boxed up nor guarded. There was evidence tending to show that this might have been done without affecting their operations. Plaintiff's skull was fractured and two holes made therein, and there was evidence to show he suffered great pain and permanent injuries. Defendant pleaded contributory negligence, assumption of risk, that the statute invoked did not apply, and that it was unconstitutional.

There were two trials. On the first, in Pemiscot county, plaintiff had judgment for $8,000. After the grant of a new trial, there was a change of venue to Dunklin county, where plaintiff had judgment for $7,000 on June 21, 1911, from which judgment defendant appealed to this court on the theory that a constitutional question was involved.

John A. Hope and Ernest A. Green, both of St. Louis, for appellant. Ward & Collins, of Caruthersville, for respondent.

BOND, J. (after stating the facts as above).

We cannot take jurisdiction of this appeal, unless some constitutional question was validly raised on the trial and undecided by us at the date of the appeal, since the amount in dispute is within the appellate jurisdiction of the St. Louis Court of Appeals, in whose territorial jurisdiction the judgment was rendered. Dickey...