Walter v. Missouri Portland Cement Co.

Citation250 S.W. 587
Decision Date09 April 1923
Docket NumberNo. 23147.,23147.
PartiesWALTER v. MISSOURI PORTLAND CEMENT CO.
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by Robert W. Walter, a minor, by his next friend, Beatrice Walter, against the Missouri Portland Cement Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kelley, Starke & Moser and Charles E. Morrow, all of St. Louis, for appellant.

Sidney Thorne Able and Charles P. Noell, both of St. Louis, for respondent.

WHITE, J.

Action for personal injuries. Plaintiff recovered judgment in the circuit court of the city of St. Louis in May, 1921, for $20,000, The trial court overruled the motion for new trial on condition that the plaintiff remit $10,000 from his judgment, which was accordingly done. From the reduced judgment for $10,000 the defendant appealed.

The plaintiff alleged his employment and his duties in tending the motors of the defendant, and alleged several acts of negligence on the part of the defendant, only one of which was submitted to the jury—the failure to guard the dangerous machinery about which plaintiff worked, in violation of section 6786, R. S. 1919.

Plaintiff was 18 years of age at the time of the trial. He went to work at the job June 8, 1920, and was injured June 28th following. Previously he had worked in different parts of the plant operated by the defendant, but under the present employment he was to take care of the 43 motors used in operating defendant's plant. He filled them with oil and drained the oil from them when they became hot. These motors were in various parts of defendant's plant. The particular motor which caused the injury was 75 feet above the ground on the clinker storage tank in a small tin house about 3 by 6 feet. The plaintiff climbed to that motor by means of ladders. It was the only motor located at that point. The motor rested on a block of wood three or four inches thick upon the floor. Two cogwheels meshed together in this motor—a large cogwheel 2 feet or more in diameter, and a small cogwheel 4 or 5 inches in diameter. The large cogwheel came down to within 2 inches of the floor, while the small cogwheel was more than a foot from the floor. Facing the motor on the side of the small cogwheel there was a shaft extending to the left. About 3 inches from the cogwheels was a plug which, when pulled out from below, allowed the oil to drain from the motor. Further to the left was other machinery covered by a casing or a guard of some kind. The plaintiff had been instructed as to how he should tend these motors. If he found a motor hot, it was his duty to pull out the plug beneath and allow the oil to drain out. The plug was about 2½ or 3 inches" lower than where the cogwheels meshed together and about 6 inches to the left.

Photographs were introduced in evidence and appear in the record showing this machinery. The upper part of the cogwheels was guarded by what appears to be a metal casing, which came over the large cogwheel and projected over the small cogwheel. There was no guard at the bottom which would prevent the hand of some one feeling around there from slipping into the cogwheel from beneath. The way these cogwheels worked la described in the petition and in the evidence. As the cogs came together they turned in towards each other at the bottom and turned outwards from each other at the top. So any contact with the cogwheels at the top would not have been dangerous, because at the top they revolved away from each other, while at the bottom, where they were not guarded, they revolved towards each other, so that anything coming in contact with the gears where they came together below would be carried into the cogs and crushed.

The plaintiff, on the day in question, carrying out instructions, felt of the motor and, finding it hot, started to draw off the oil. This he proceeded to do as he was directed. He placed his left hand on top of the machinery where it was protected, stooped down and, to a stooping posture, with a pair of pliers which he carried, he attempted to take hold of the plug which was a few inches above the floor and extract it downward so as to allow the oil to flow out. In doing so his hand slipped from his pliers and slipped into the mesh between the cogs of the two wheels, and his fingers were crushed so that his arm was amputated above the wrist.

Evidence was introduced which showed that it was possible to guard these cogwheels from the under side without interfering with the effective operation of the machinery; and evidence tended to show that the cogwheels were dangerous to one performing the duties plaintiff performed. He was obliged to pull out the plug while in what appears to have been a rather unsteady stooping position. Apparently he could not see where the cogwheels meshed together. While the distance from his hand was only a few inches, the cogs were obscured by the covering on top of the wheels.

The defendant offered no evidence, but presented a demurrer to the evidence at the close of the plaintiff's case, which was overruled.

The appellant does not assign error to the overruling of its demurrer to the plaintiff's evidence, thus conceding that the evidence offered by the plaintiff was sufficient to make out a prima facie case of negligence on the part of the defendant in failing to guard the machinery, and that such failure was the cause of the plaintiff's injury. The only errors assigned are to the giving and refusing of instructions.

I. Appellant objects to the first instruction given on behalf of the plaintiff, on the ground that it is too, long, covering more than three printed pages of the record—so long that appellant's counsel in his argument declared that it needed an index. The Instruction requires a finding by the jury of every fact essential to recovery. It is long but It is not obscure; it is clear enough. Notwithstanding its length it was not likely to be misunderstood by the jury. Its mere length will not constitute error.

II. Appellant complains of several other defects in the instruction: (1) That it does not require the jury to find the defendant's failure to guard the gearings caused the plaintiff to be injured. (2) It did not require the jury to find that it was possible safely and securely to guard the...

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