Williams v. St. Joseph Artesian Ice & Cold Storage Co.
| Decision Date | 09 July 1919 |
| Docket Number | No. 19042.,19042. |
| Court | Missouri Supreme Court |
| Parties | WILLIAMS v. ST. JOSEPH ARTESIAN ICE & COLD STORAGE CO. |
Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.
Action by Guy O. Williams against the St. Joseph Artesian Ice & Cold Storage Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Mytton & Parkinson, of St. Joseph, for appellant.
Culver & Phillip, of St. Joseph, for respondent.
Action for personal injuries grounded upon negligence. After amendments of the petition by interlineation during the progress of the trial, the negligence charged is thus "stated:
"Plaintiff, for a cause of action, states that at all times herein mentioned the defendant was and now is a corporation duly organized and engaged in the business of manufacturing ice and providing cold storage space in the city of St. Joseph; that as a part of its plant on Main street used for the manufacturing of ice in said city the defendant maintained machinery consisting of a large number of wheels and cogwheels, with oil cups placed thereon; that on and for a long time prior to the 4th day of July, 1914, the defendant carelessly and negligently maintained said machinery without guards to properly protect persons working upon and about the same and employés engaged in labor in, upon, and about said machinery, and carelessly and negligently maintained an oil cup attached to said machinery in a dangerous, defective, and improper manner, in that there was no extension or sufficient extension provided in attaching the oil cup and the rod carrying it so as to cause' it to revolve a sufficient distance from the cogwheels of the machine, thereby rendering said machinery dangerous."
Upon a trial of the cause the court gave a peremptory instruction to find for the defendant, and plaintiff took an involuntary nonsuit. After motion to set aside the involuntary nonsuit and grant a new trial was by the court overruled, the plaintiff appealed. The petition asked damages in the sum of $10,000. The answer admits the corporate capacity of the defendant, and then thus proceeds:
"But denies each and every other allegation in said petition contained."
In other words, the answer to all intents and purposes is a general denial. There is no separate and formal assignment of error in the brief, but under the head of "Points and Authorities" we have the following:
"Under the law and the evidence the case should have been submitted to the jury, and the court erred in giving defendant's instruction in the nature of a demurrer to the evidence."
From this we have a mixed question of fact and law for determination. Defendant urges contributory negligence of plaintiff. The facts in detail had best be left for the opinion.
I. A preliminary question is presented in the shape of a motion to dismiss the appeal. The sufficiency of the affidavit for appeal is challenged. The affidavit is in usual form, except that, where it should have said "affiant believes appellant is aggrieved by the judgment and decision of the court herein," the word "respondent" is used instead of the word "appellant." In other words, if you substitute the word "respondent" for the word "appellant" in the quotation, supra, we have the exact language of the closing clause of the affidavit for appeal in this case. The use of the word "respondent" instead of "appellant" in this affidavit is so clearly what the cases denominate a "clerical error" that we need not spend time and space on this motion. State ex rel. v. Broaddus, 210 Mo. loc. cit. 16, 108 S. W. 544; Cassidy v. St. Joseph, 247 Mo. loc. cit. 204, 152 S. W. 306. The motion which was taken with the case is overruled.
II. Whether it was absence of negligence upon the part of defendant, or contributory negligence upon the part of the plaintiff, that induced the action of the trial court we have no means of determining. The defendant urges that the demurrer was properly sustained on both of these grounds. There is no plea of contributory negligence in the answer, but this is immaterial, if the evidence introduced by and for plaintiff clearly showed his contributory negligence. Sissel v. Railroad, 214 Mo. loc. cit. 526, 527, 113 S. W. 1104, 15 Ann. Cas. 429.
So that we have the question in the case, if the evidence for the plaintiff is such as to show his contributory negligence.
In the briefs here, the question of a failure to guard the machinery as an act of negligence is wholly abandoned, so that question falls out of the case. The questions left are: (1) The alleged negligence of defendant in having and maintaining the oil cup "in a dangerous, defective, and improper manner, in that there was no extension or sufficient extension provided in attaching the oil cup and the rod carrying it so as to cause it to revolve a sufficient distance from the cogwheels of the machine"; and (2) the alleged negligence of the plaintiff. Of these in order in succeeding paragraphs.
III. Did plaintiff's evidence show negligence upon the part of the defendant? To the trained mind the evidence given by plaintiff himself is not as impressive as it might be. In passing upon the demurrer it is not within this court's province to reject it as unworthy of belief. That is a question for the jury. Cur province is to say whether or not the evidence (true or false) is such as would make a case for the jury. Now for the facts as disclosed.
Plaintiff was working for defendant in and around its ice plant. His position was that of a "roustabout," and his duties were to do such work as he was told to do. So he testifies. He had some three fingers of his right hand injured ($10,000 worth) on July 4, 1914, whilst oiling a pump belonging to defendant. Defendant had some five pumps by which water from so many wells was pumped in another well, and then the water thus accumulated was again pumped to its ice plant for use. Plaintiff's injury was inflicted by pump No. 5 of the five pumps above mentioned.
Plaintiff says that on the evening before the accident to his hand, he was told by Mr. Elkins, the superintendent of defendant, to go down the next morning and get the pump to running and keep it running. The language of the witness in one place is:
"Told me to go down there and get the pump to running and keep it running; keep it well oiled and running."
The defendant had a regular pump man, and this man started pump No. 5 the morning of the accident. Plaintiff, according to his statement of it, was doing other work in the yard near this pump, but was also watching the pump to carry out the instructions from Elkins. About 10 o'clock in the morning he undertook to screw down the oil cup so as to force the oil down upon the bearing, and his fingers were caught between the oil cup and the rim of the adjoining cogwheel. The situation can best be stated by exhibits marked "A" and "D" in the record.
Counsel for plaintiff has thus well described the pump:
These pictures show the oil cup on an extended rod, between the two rods of the drive shaft. With this extension rod it will be observed as the cup comes to the top of the wheel it will be much above the rim of the wheel. It will also be noted that the extension rod is bent outward, so that the oil cup, when it reached the top of the wheel, would stand out from the rim. The plaintiff's evidence tended to show at the time of the accident that the oil cup on the north wheel of the pump had no extension rod as shown in the picture, but that the oil cup was fastened to the bearing between the two rods of the drive shaft, and instead of being bent outward, it was straight up, so that when the cup reached the top of the wheel it would be within a quarter to a half inch of the rim. He also says that the wheel was moving so fast that he could not see whether there was an extension to the cup or not. Other evidence for him tends to show that these wheels make 50 to 60 revolutions per minute, and that the situation of the oil cup was plainly visible, as was also its proximity to the rim of the wheel, when there was no extension on the cup. Plaintiff says that he went back after the accident and found that the south wheel had an...
To continue reading
Request your trial
-
McCormick v. Lowe and Campbell Ath. Goods Co.
...378; Barker v. Hemphill Lumber Co., 217 S.W. 585; Coin v. John H. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1; Williams v. St. Joseph Artesian Ice & Cold Storage Co., 214 S.W. 385; Minnier v. Sedalia W. & S.W.R. Co., 167 Mo. 99, 66 S.W. 1072; Jackson v. Mo. Pac. R. Co., 104 Mo. 448, 16 S.W. 4......
-
Stein v. Oil & Grease Co.
...656, 271 S.W. 800; Smith v. Box Co., 193 Mo. 715, 92 S.W. 394; Dressie v. Railroad, 145 Mo. App. 163; Williams v. Ice & Cold Storage Co., 214 S.W. 385; Rosser v. Fayette, 235 S.W. ELLISON, C. Action for $10,000 damages for the death of plaintiff's husband, occasioned by the alleged negligen......
-
Brackett v. Masonry & Contracting Co.
...without dispute that it was not customary to fasten such footboards. 18 R.C.L. 547; 3 Labatt, Master & Servant, 2500; Williams v. Cold Storage Co. (Mo.), 214 S.W. 385; Spindler v. Am. Express Co. (Mo.), 232 S.W. 690; Brands v. Car Co., 213 Mo. 698; Coin v. Lounge Co., 222 Mo. 509; Gordon v.......
-
Greenan v. Emerson Electric Mfg. Co., 39499.
...349 Mo. 267, 160 S.W. (2d) 701; Mosely v. Sum, 344 Mo. 969, 130 S.W. (2d) 465; Williams v. St. Joseph Artesian Ice & Cold Storage Co., 214 S.W. 385; George v. St. Louis Mfg. Co., 159 Mo. 333, 59 S.W. 1097; Doerr v. St. L. Brewing Assn., 176 Mo. 547, 75 S.W. 600; Smith v. Forrester-Nace Box ......