Zachra v. American Manufacturing Company

• Decision Date: 15 July 1911
• Parties: ALOIS ZACHRA, Appellant, v. AMERICAN MANUFACTURING COMPANY, Respondent
• Court: Missouri Court of Appeals

139 S.W. 518

159 Mo.App. 96

ALOIS ZACHRA, Appellant, v. AMERICAN MANUFACTURING COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

July 15, 1911

Argued and Submitted April 5, 1911

Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.

Judgment affirmed.

Hall & Dame for appellant.

(1) The facts shown as to the condition, size and number of broken bolts and supports of the shaft which fell, the fact that the bolts or screws holding the journals had worked loose and had to be tightened, the coming off of the ropes a short time prior to the accident showing the shaft and sheave not properly or accurately in alignment was circumstantial evidence of negligence sufficient to support a verdict in favor of plaintiff. 6 L.R.A. (N.S.) 337, Note; 28 L.R.A (N.S.) 586, Note and 591 Note; Bowen v. R. R., 95 Mo. 286; Deckard v. R. R., 111 Mo.App. 117. (2) Plaintiff is entitled to the benefit of the maxim res ipsa loquitur because: (a) The accident was of the class that do not ordinarily occur when due care has been exercised. (b) The thing causing the injury was under the control of the defendant. (c) The burden was cast upon the defendant to explain the occurrence. (d) The cause of the accident was peculiarly within the knowledge of the defendant and not within the knowledge of the plaintiff. Fleischman v. Ice & Fuel Co., 148 Mo.App. 117; Gallagher v Illuminating Co., 72 Mo.App. 576; Rice v. R R., 131 S.W. 374; Scharff v. Const. Co., 115 Mo.App. 157; Sackewitz v. Mfg. Co., 78 Mo.App. 144; Capithorne v. Hardy, 173 Mass. 400; Houston v. Brush, 66 Vt. 331; Graham v. Badger, 164 Mass. 42; Chenall v. Brick Co., 117 Ga. 106; Turner v. Harr, 114 Mo. 335; Johnson v. R. R., 104 Mo.App. 588; Ristau v. Coe Co., 104 N.Y.S. 1059.

Percy Werner for respondent.

(1) The doctrine of res ipsa loquitur does not apply to the facts in this case. Breen v. Cooperage Co., 50 Mo.App. 202; Beebe v. Transit Co., 206 Mo. 419; Hamilton v. Railroad, 123 Mo.App. 619; Haynie v. Packing Co., 126 Mo.App. 88.

(2) Even if this were a proper case for the application of the doctrine of res ipsa loquitur, plaintiff having pleaded specific negligence, cannot resort to that doctrine to make out his case. Orcutt v. Century Bldg. Co., 201 Mo. 425; Black v. Railroad, 217 Mo. 672; Crawford v. Traction Co., 137 Ill.App. 163.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

While plaintiff was at work in the hemp factory of defendant, running hemp through a machine, a heavy, rapidly revolving iron shaft and its fastenings and supports and certain pulleys and a wheel or sheave, around which ran several strands of rope, fell, and the disengaged or loosened strands of rope wound around the body of plaintiff and whipped and jerked and dragged him with great force and violence, injuring him in his stomach and bowels and head and arms, as it is alleged in the petition. Quoting from the statement of the petition as made by counsel for appellant, the negligence charged is that "defendant furnished plaintiff an unsafe and dangerous place in which to work in assigning him to work under and near to the said machinery and under the transmission ropes, which place was unsafe and dangerous in 'that said shaft and the machinery connected with it as aforesaid, were insecurely, defectively and negligently by defendant fixed, fastened and supported in place, that the hangers or supports of said shaft were fastened by bolts to said timbers, and that the said timbers had become old and weakened and that the said hangers or supports were too small and were not of a size and strength commensurate with the strain upon them, and that the said bolts were too few and too weak to bear in safety the weight and strain of said machinery, and that by reason of the defects aforesaid, and each of said defects, there was danger of said machinery breaking from its supports and falling and injuring persons working near and under it, and danger of its injuring plaintiff while he was at the work aforesaid; and--that defendant knew, or by the exercise of ordinary care could and would have known of the danger aforesaid and that it was not reasonably safe for plaintiff to work under and near said machinery as aforesaid.' And the petition charged that the fall of the machinery and the injury to plaintiff were the direct result of defendant's said negligence." The sub-quotation is from the petition.

The answer was a general denial except as to the corporate character of the defendant, which was admitted.

According to the printed statement of appellant's counsel, "the plaintiff's testimony tended to show that plaintiff was injured by the fall of a shaft and the machinery connected with it from its place above where plaintiff was stationed at his work taking hemp from a mill; that the injury to plaintiff was the result of his being caught and struck by large ropes which were driven by steam power around a large wheel or sheave on the shaft which fell.

"There was evidence as to the number and size of the supports of the machinery and the number of bolts in the hangers or fastenings, and as to their arrangement. There was testimony that some of the hangers broke and that in others the bolts broke or pulled out. There was testimony that the ropes had come off of the sheave and had to be replaced shortly before plaintiff's injury and that the screws or bolts of the fastenings became loose and had to be tightened, and there was evidence that a large opening was made in the floor above the shaft preparatory to adding new machinery to the shaft. It further appeared from the evidence that plaintiff had nothing to do with the construction or care of the machinery. His only work was that at which he was engaged at the time of his injury, that of carrying away hemp from one of the mills or machines."

Defendant offered no testimony but at the close of plaintiff's testimony interposed a demurrer which the court gave, whereupon plaintiff took a nonsuit with leave etc., and filing that motion, which was overruled and...