Turner v. Tyler Land & Timber Company
| Decision Date | 02 March 1915 |
| Parties | E. W. TURNER, Respondent, v. TYLER LAND & TIMBER COMPANY, Appellant |
| Court | Missouri Court of Appeals |
February 1, 1915, Argued and Submitted
Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.
AFFIRMED.
Judgment affirmed.
John A Hope and Ernest A. Green for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence as prayed for by defendant at the conclusion of plaintiff's evidence and at the conclusion of all the evidence, and erred in not peremptorily instructing the jury that under the law and the evidence plaintiff could not recover and to return a verdict for the defendant. (a) The evidence as disclosed by the plaintiff and as a whole, showed that plaintiff as a matter of law was guilty of contributory negligence. Lore v. American Mfg. Co., 160 Mo. 621; Colliott v. Mfg. Co., 71 Mo.App. 163; Huss v Bakery Co., 210 Mo. 44; Simpson v. Iron Works, 249 Mo. 386. (b) Plaintiff had no cause of action under the statute sued on, as that one applies only to such machines as are dangerous to employees while in the performance of their ordinary duties, which plaintiff was not at the time of receiving the injury complained of by him. Laws, 1891, page 159; Sec. 6433, R. S. 1899; Sec. 7828, R. S. 1909, (Laws 1909, p. 502); Lang v. Bolt & Nut Co., 131 Mo.App 146; Meifert v. Sand Co., 124 Mo.App. 491; Strode v. Columbia Box Co., 250 Mo. 695; Forbes v. Dunnavant, 198 Mo. 210; Strode v. Box Co., 124 Mo.App. 511; Powalskie v. Brick Co., 110 Wis. 461; Wyncoop v. Mfg. Co., 30 L.R.A. (N. S.) 40, 196 N.Y. 324; Stodden v. Anderson & Winter Mfg. Co., 16 L.R.A. (N. S.) 614; Cement Company v. Insurance Co., 162 N.Y. 403; Robbins v. Fort Wayne Co., 41 Ind.App. 557; Findlay v. Columbia Box Co., 124 U.S. 511; Dillon v. Coal Tar Co., 181 N.Y. 215; Byrne v. Carpet Co., 61 N.Y.S. 741. (c) The statute under which this action is brought does not require the guarding of the character of "clutch coupling" which caused the injury and, therefore, plaintiff could not recover under said statute. Laws, 1891, p. 159; Sec. 6433, R. S. 1909; Sec. 7828, R. S. 1909, (Laws, 1909, p. 502); Smith v. Box Co., 193 Mo. 715; Czernicke v. Ehrlich, 212 Mo. 386; Cole v. Lead Co., 130 Mo.App. 253; Strode v. Columbia Box Co., 250 Mo. 695; Simpson v. Iron Works, 249 Mo. 389; Forbes v. Dunnavant, 198 Mo. 210. (d) Plaintiff could not recover under the statute sued upon in this case, as there was no evidence that the State Factory Inspector had directed the instalation of guards on the coupling in question. Laws, 1891, p. 159, sec. 16; Sec. 6446, R. S. 1899; Strode v. Columbia Box Co., 250 Mo. 695; Simpson v. Iron Works, 249 Mo. 376; Williams v. Railroad, 233 Mo. 682; Foley v. Machine Works, 149 Mass. 297; Borck v. Bolt & Nut Co., 111 Mich. 133; Kerr v. Brass Mfg. Co., 151 Mich. 191. (e) The statute upon which plaintiff's alleged cause of action was founded, is unconstitutional in that the title to the legislative act creating said statute does not disclose its true contents. Furthermore, said act is violative of both the Federal and State Constitutions in denying to defendant the equal protection of the laws, and is special and class legislation. Laws, 1891, p. 159; Sec. 28, Art. 4, Constitution of Missouri; Sec. 1, Art. 14, Amendments to Constitution of U. S.; Sec. 53 & 54, Art. 4, Constitution of Missouri; Simpson v. Iron Works, 249 Mo. 376; Williams v. Railroad, 233 Mo. 680; Durkin v. Kingston Coal Co., 171 Pa. 193, 33 A. 237, 50 Am. St. 801, 29 L.R.A. 808. (f) The statute sued upon by the plaintiff has no application to the facts of this case, as it applies only to cities of 5000 inhabitants or more. Article 17, Chapter 91, R. S. 1899; Knowlton v. Moore, 178 U.S. 41, 44 L.R.A. 969; Barnes v. Jones, 51 Cal. 303; People v. Molyneux, 40 N.Y. 113. (2) Plaintiff's petition wholly failed to state a cause of action and the court erred in refusing to sustain the defendant's objection ore tenus to the introduction of any evidence whatever under the same. Authorities cited under point 1. (3) The trial court erred in admitting incompetent testimony on the part of the plaintiff and over the defendant's objection, viz: the opinion evidence of witnesses who were not qualified as experts, to the effect that this clutch coupling could have been safely guarded without interfering with the operation of the machinery. Guffey v. Railroad, 53 Mo.App. 462; Helfenstein v. Medart, 136 Mo. 595; Pullman's Palace Car Co. v. Harkins, 55 F. 932; Allen v. Lumber Co., 171 Mo.App. 492; Campbell v. Railroad, 175 Mo. 161; Statler v. Railroad, 200 Mo. 126; Benjamin v. Railroad, 50 Mo.App. 602; Turner v. Haar, 114 Mo. 335; Goins v. Railroad, 47 Mo.App. 173. (4) The court erred in excluding on plaintiff's objection, competent testimony offered by the defendant as to the proper method which should have been employed by the plaintiff in cleaning out the blow pipe. 26 Cyc., p. 1433; Devaney v. Constr. Co., 178 N.Y. 620, 70 N.E. 1028; Greenwell v. Crow, 73 Mo. 640; Carl v. Pierce, 20 Ohio Cir. Ct. 68; Fritz v. Western Union Tel. Co., 25 Utah 263, 71 P. 209. (5) The court erred in giving to the jury instructions 1, 2 and 3 on part of the plaintiff. These instructions give an erroneous and improper interpretation of the statute sued on and as applied to the machinery involved in this case. Authorities cited under point 1; Chaney v. Railroad, 176 Mo. 598; Sack v. St. Louis Car Co., 112 Mo.App. 476; Cook v. Railroad, 94 Mo.App. 417. (6) The court erred in refusing to give to the jury instructions asked for by defendant, numbered 1, 2, 6, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24. Cases cited under point 1, supra. As to instruction number 2: Heuss v. Heydt Bakery Co., 210 Mo. 44; 38 Cyc., p. 1759; Railroad v. Burridge, 211 Ill. 9, 71 N.E. 838; Railroad v. Stonecipher, 90 Ill.App. 511; Illinois Commercial Men's Assoc. v. Perrin, 139 Ill.App. 543; As to instruction number 6: Meiley v. Railroad, 215 Mo. 567; Waddingham v. Hulett, 92 Mo. 528; Eames v. New York L. Ins. Co., 134 Mo.App. 331. As to instruction number 13: Kirchner v. Collins, 152 Mo. 394; Brown v. Railroad, 66 Mo. 588; Walker v. Railroad, 106 Mo.App. 321. (7) The damages awarded by the jury are so grossly excessive as to conclusively prove that the verdict must have been the result of bias, prejudice and passion on the part of the jury. Partello v. Railroad, 217 Mo. 658; Baker v. Stonebraker, 36 Mo. 338; Spohn v. Railroad, 87 Mo. 84; Ice Co. v. Tamm, 90 Mo.App. 202; Adams v. Railroad, 100 Mo. 555; Chlanda v. Railroad, 213 Mo. 244.
Ward & Collins for respondent.
--This action was commenced in the circuit court of Pemiscot county. The petition avers that on March 18, 1907, plaintiff was employed in defendant's stave mill and factory to run and operate a bolting saw; that in such employment it was his duty to keep dust and trash which accumulated under and which was produced by the saw in cutting bolts out and away from the saw so that it could be carried away by means of a blow pipe; that this bolting saw operated on the end of a long iron shaft which revolved with exceedingly great speed; that the saw and its appurtenances were geared to the shaft by means of a large iron clutch-coupling; that to clean out this saw-dust, plaintiff was obliged to go in a pit under this shafting to which the clutch-coupling was affixed, and to get down on his hands and knees and work along, about and immediately under this shaft and clutch-coupling. Averring that the shaft with this clutch-coupling as arranged, was exceedingly dangerous, which fact was known or might have been known to defendant but was unknown to plaintiff, and averring that he was wholly inexperienced in the operation of the bolting saw and in the work of cleaning out under it, plaintiff charges that while he was so working, the shaft with the clutch-coupling was revolving and he was working directly under the latter; in its revolution it struck him on the head, injuring him severely, laying him up for some time, causing him to lose much time from his labor, involving him in the expenditure of large sums for medical attendance, diminishing his wage-earning capacity, shattering his nervous system and permanently injuring him, plaintiff asks damages in the sum of $ 10,000.
The answer, after a general denial, pleads contributory negligence, assumption of risk, and negligence of plaintiff's fellow-servants. It is further pleaded that the statute invoked by plaintiff (section 6433, article 17 chapter 91, Revised Statutes 1899) does not apply, and that if it does, the placing of guards around the mandrel and coupler would have interfered with the free, practical and effective operation of the machinery, for which reason defendant avers it was under no obligation to guard the machinery; that this mandrel and coupler were not within the meaning of the statute referred to and were not so placed in the mill as to be dangerous to persons employed therein while engaged in their ordinary duties and were not dangerous to plaintiff while engaged in the ordinary duties of his employment, and that defendant was under no duty, under the statute, to place guards around or about the machinery mentioned in the petition. It is further set up that defendant was not liable under the statute until a factory inspector had first examined the machinery and pronounced it not sufficiently guarded. It is also pleaded that this statute applies only to cities of 5000 inhabitants or more and that the town of Tyler, where the mill is located, has less than 100 inhabitants. Finally the statute is attacked as unconstitutional, as in violation of sections named of the Constitution...
To continue reading
Request your trial