*1 OF SUPREME COURT MISSOURI, 292 Milling Berry Majestic v. Co. R. Friend,
BENJAMIN Next LAURA His BERRY, A. COMPANY, BERRY, MAJESTIC MILLING Appellant. 10, One,
Division 1924. June Action. New 1. FORMER on Merits: Reversal ADJUDICATION: Plaintiffs counts. in his suit contained two first Inr age o£ first he stated that he minor under sixteen was a employment under unlawful and his in its mill was defendant negligence in- caused his the Child 1911 Labor Act of and was inexperienced jury. charged In the second count he required dangerous, and defendant and the work he was to do negligent requiring perform without warn- such work him verdict, ing danger. as to the he dismissed Before appeal count, on the first for him second cn outright, ground un- said act was on the count reversed request no a modification of void. made for constitutional subsequently brought unqualified reversal, action this based ques- negligence in said count. set second the acts of forth acljuclicata on the of reversal res tion whether opinion, is discussed in the but a to this action merits and a bar majority in the conclusion reached. do not concur Employment: Employee: Scope Outside NEGLIGENCE: Work 2. damages injuries employee personal Minor. recover cannot An pertaining performing duties to his em- unless the time stranger ployment, upon authorizing except re- circumstances If, knowledge disobedience to the direc- cover. without unnecessarily places employer, his hand box for tion of his ascertaining properly purpose the rolls therein are whether caught by meal, grinding hand into and his the rolls off, injuries ground fingers recover for his he cannot unless part it was was to test see of his duties applies employee although ground. properly And the rule is a minor. Judgments, 34 J. 2: Master 1: C. sec. Headnote Headnote Cyc.
Servant, 1088. Springfield Appeals. Court of Transferred Reversed. appellant. L. McNatt
Allen Allen John é Vol.
(1) properly matters involved in subject-matter case this brought longed of the first action plaintiff. Clark v. Railroad, Mo. 595; Bircher *2 204 Mo. Jordan 562; 202 Boemler, Railroad, v. Mo. v. 472, App. (2) v. Transit 103 Mo. If Co., McGuire 425; plaintiff’s petition properly allegations in the the longed subject-matter of first to the action and were they plea by' are barred then of included, res adjudicata as if in the same been included Spratt Early, litigation. v. 199 Mo. Donnell 500; former (3) Wright, A Mo. 6-39. of reversal 147 v. judgment. v. Railroad 228 Co., Strottman Mo. final is a Fisnegan Mo. v. Railroad 244 Co., 663; Ginnocchio 154; Abbott Co., 264 Mo. v. Railroad 520; 264 v. Railroad Co., 616. Mo. respondent. J. Potter for McPherson and A. V.
I. Appeals opinion of the Court should be re The of opinion holding (1) in The the decision versed. Berry .Majestic Milling Supreme in v. Court Co., of the on the and a merits bar W. 738, 223 S. following conflict with the con is in direct suit, to trolling Ellington Supreme of the Court: v. decisions Murphy, 40 v. Mo. 122; 13 Mo. Clemens 72; Crockett, Salisbury, Wright 26; 46 Mo. Wells v. 49 Mo. Moore, v. Taylor, Conway, Spradling Mo. v. 51; v. 51 Short 230; 139 Mo. Couch Davidson, 126; Baldwin Mo. v. 517; 137 Joseph, St. Mo. Harp, 164; 201 Mo. v. Womack v. 228 Mo. Johnson v. Railroad, 154; v. 467; Strottman v. 264 Mo. Railway, Railroad, 294; 243 Mo. Ginnocchio opinion, holding (2) that the former de 520. present Supreme suit, a bar to the Court cision of the is of with and a violation Section in direct conflict holding opinion, (3) 1919. Revised Statutes Supreme is a-vio of the Court the former decision provisions 10 and 30 Article of Sections of the lation SUPREME OF MISSOURI, COURT v. opinion 2 of the Constitution Missouri, in that this justice respondent denies to the him a hear denies deprives ing of his case on the merits and life of his rights process (4) property without due of law. ' Appeals ruling The Court of Supreme overlooks the real Majestic Milling Berry case Court misinterprets Company, and the lan misconstrues and guage opinion, meaning of said the Court Appeals opinion of' construes be one on the upon that, merits of the a decision all the law case, is, only solely facts, whereas, decides question pass upon a Berry the merits. law and does not Majestic Milling S. W. Co., boy injury case. C. Personal
SMALL, Plaintiff, employed age, November fifteen 23,1.916, in its cornmeal mill Lawrence defendant at Aurora, *3 fingers right County, the of were Missouri, and his hand injured caught such the rollers in mill and between to amputation necessary. May an extent was At that the against he filed suit term, 1917, defendant to recover dam- grounds ages injury alleged: for said as and therefor employment plaintiff’s by First, defendant, years prohibited age, under sixteen of was a crime and by negligence made the laws of unlawful Missouri and was part, injury, on defendant’s which for caused his and $10,00(). prayed which in the sum “For of petition another and further cause action” of the stated plaintiff employed was to run one of defendant’s corn required judg- mills, and that such work skill and mature dangerous performed by ment, and was without one judgment; plaintiff skill and mature at all times inexperienced, years age unskilled and was but fifteen of youth inexperience ignorant and on of account his and dangers of employed the such of work as he was re- quired might do, to which defendant have known knew.or by the exercise due care; of that under such circumstances duty plaintiff it was dangers defendant’s to warn of the of such proper work and to instruct him as to the manner performing injury, same, so as enable him to avoid Yol. Milling
Berry Majestic plain- negligently or warn instruct failed to but defendant plaintiff permitted all times required tiff warning machinery instruc- operate such without such employment Novem- whereby on his course’of tion, caught between right hand was 1916, 23, ber injured machinery fingers toas so and his such the rolls of damaged in the sum require amputation, which he was judgment. prayed for which he $10,000, contributory general denial and was a answer petition, negligence further the both counts of as to ap- Legislature plea first count that an act employ proved April making chil- it unlawful to 1911, 7, employment age such in dren under the sixteen employed unconsti- defendant, 28 of Section that it for the reason violated tutional, act Missouri, in that said Article 4 the Constitution of subject purposes than one and that more contained expressed clearly title. thereof were voluntarily evidence After all the was heard petition, count in under dismissed second jury verdict evidence and instructions the found defend- on first $5000, count, appealed here ant cause heard court. act and in we held said Two, Division its subject-matter Legislature because its void, -was clear- outright expressed ly case in its title, reversed plain- Thereupon, remanding [284 182.] it. Mo. without brought against tiff for the same this suit defendant and up injuries, December 1920, and in his set peti- contained count *4 same facts second prayed prior judgment. in tion the suit and the same To the in this case, defendant answer, general negligence, contributory sides denial and pleaded re- the reversal of the former without manding .adjudicata. the this court cause as res At the entry including trial the record in the cause, former the showing peti- its dismissal as to the count of the second tion and our evidence was mandate, plaintiff. testimony as the Both sides also introduced to the merits of the case. SUPEEME COUET OF MISSOUEI,
n Plaintiff’s evidence: Plaintiff testified lie was born employed by and in he defendant; message go received a down defendant’s mill, and saw did, Jester, foreman. Mr. Jester asked years. old he how him told fourteen Jester you you then told him, I can “Well, will take down help (Jester’s son) They Lonnie make meal.” went then down Lonnie where was in the corn told mill, Jester help- him the Lonnie make meal and showed him how to take spout off sacks and off the scales. He started per week, $10 and was raised to before the week $12. up. He worked three weeks. Lonnie and he were only ones who worked in the corn mill. In mill were two sets of rollers on floor. one floor, middle They power use steam to run the mill. corn He inwas eighth grade any- at school, and had not done much of thing before that. Had never been in before. this mill experience machinery. Had no with mill Mr. Jester came day. in the corn mill two or three times a hadHe cer- no tain time. He came in when he had a chance—sometimes day days more than once a and some not at all. stay just swept a minute. He and “we” oiled machinery and started it and un- threw sacks off and spouts they choked the choked. Once Jester asked paint them helped “we” roof, load flour into the cars on the track. they “We” did whatever needed to do us when short of hands. Unloaded coal, worked elevator once weighed chops. or twice, sacked and Jester examining him saw the meal. He had often seen Lonnie examine the meal. Jester never anything when he oiling machinery, saw him examining the meal or un- choking machinery. gave Never instructions or directions about the any- work. “Never forbid to do thing, only once. Lonnie ‘monkeying’ with set- screw that set the boys rolls, Jester came and said us had better not do that and said he it. would set These are screws on the sides rolls.” He did not know wqrked. just how He never undertook to these set injured spout screws. just When he up choked *5 Vol
Berry Majestic Milling Co. into the got and unchoked, turned it and again. went He then let it run started first rolls and get put handful hand in his roll and to the around feeling said to hollered and it. “Lonnie and was up, it not would if we did catch off a few sacks take my hol- up again” hand back threw and “I when choke fingers. caught my him lered and started . “ caught place you you get to this where did Q. How top a little A. There was door the meal? length inches wide and the It or four
lid. three my hand me . . Lonnie called I had . When roll. my just edge I threw it and the box and looked at him and started to turned it down back like hand fingers body my my move when I catch. did and felt caught. I when could I turned head he called. sight. examining this meal him. He was out of I was see corn ... I fine or coarse. turned to see it was feeding meal. The corn into before I examined the just again. fooling mill around a minute While I was fingers my was. After were or caught where the roll two I went power Lonnie shut the Jester another man off, They up came.” took off, the.belt backed the rolls took hand out. Afterwards the doctor took four fin- pain gers off. He suffered considerable still feels pain fingers. sleep in those Does not well. suffers Still pain hand. still Hand is tender. Jester sometimes unchoking. helped Jester him set once rolls—saw you opened or twice. door mill “When to the corn neyer you anything not see could the meal.” He opened the door and looked in there when run- it was not ning. just
Cross-examination: He was fifteen before injured. Last time he feet was measured he five Weighed pounds eleven tall. inches month about a ago. weighed know Does not what he hurt. Lonnie and Jester told him what do when he first went to work. They showed him take how to these off sacks and them eighty- on the truck and take them to the some warehouse away. feet That was ever all about told (cid:127) making pul- meal. One time he said to clean the off the oil SUPREME COURT OF MISSOURI, (Jester) leys. stopped. That mill was when the *6 ‘‘ anything else.
never told him all ever to do That is he ’’ weighed pounds told me to or asked to do. do me get job when he first went there to Mr. Jester. got It was in the afternoon o about four ’clockwhen he his ‘‘ hand in the roll. I went to around rest a little and to see ’’ being ground enough. this roll and if the meal was If the meal was not fine or coarse fine enough, he never set the you rolls. The were enclosed in a rolls wooden box and cannot see them. Did not know how far the rolls were caught low the pulleys meal that he hold of. There were in the side the box that “I turned the rolls. saw these going pulley rolls revolving box around they there, did not know worked. I how knew that falling (the meal was rolls) down there and had knew it something grinding with do it finer. ... I knew this meal. He knew ’’ ground that whatever was in there ground up the rolls were in there that this cornmeal. That is true. He had testified before that he knew had if he thought anything, got enough about it that if in there close grind it would that too. That correct. He examined the meal where it came out above rolls to see if was it too fine adjust or too coarse,, but he did not know how to the rolls. He had seen Jester that. do Jester told never him to feel the meal to if see it too coarse or was too fine and never reported asked his and he never Jes- ter as to whether it was too coarse or too fine. He never many it examined times. Did not know that he knew when he examined it whether it too coarse or fine. too grind fingers He knew it got they caught Ms there. He was it sure would. Neither nor Jester Lonnie keep ever away told him to from the rolls; if had stayed away done so he would have from the rolls. He place never looked in the put where he he hand when injured. was hurt before he put He hand there to examine the meal several times before. When Lonnie called him facing the roll and stuck his hand in there like “this” and threw down the like just exactly “that” —did not know how did it. Vol. plaintiff was physician that when testified
Plaintiff’s big, pounds injured weighed well about age. boy developed Other witnesses for his particulars. testimony in several corroborated evidence: On behalf of defendant Defendant’s seeing Reynolds, Mr. that after testified foreman, Jester, employ along him and to come he would he told show him do; mill and he would what the corn to they how to take he showed there and went put them on the that when truck; off the sacks scales caught got floor, let it waste on the but to not to the meal chops; up all he told him clean it with place keep clean; Jester, he, great get he had a there; that as he could mill ’often *7 eighty seventy feet from the that he was do; deal to go forwards; and 'that would backwards corn and he mill, machinery grind the that meal; he the set he, Jester, plaintiff anything around the that rolls; never told to do day plaintiff caught son Lonnie, and witness’s one he plaintiff years rolls, at the and old, sixteen who was stay if this lost that roll; nut lost off the had the plain- way; that he told turn either the set-screw would go away them alone and rolls leave from the tiff to adjustment and want- all the him that did Jester, told he, plaintiff way; have he never saw ed them left open putting of his never knew lid of the rolls the cleaning plaintiff ma- the had that he there; his hand plaintiff stopped; chinery would sometimes spouts when was get choked. help com when the meal or enough to do there. Jester, had He, Cross-examination: for it weighed tickets made out it, tested wheat, unloading loading superintended the farmers enough It was the local trade. waited on of the cars. He nobody busy at the elevator to do. When mill. What- plaintiff was at his own son but boys it. had done knew these there he ever was done day and other days mill all corn at the he would be Some day; all these duties days he had three times a two or days working he plaintiff some there, to do while SUPREME OF MISSOURI, COURT might only have been the corn mill two or three times; np places the corn mill chokes various and times; it persons boys might takes two to start it; the have spout; thing only plaintiff stick in the he showed spouts to do was to take off these and to run packer; help he told him Lonnie make meal and up. boys to clean On one occasion he found the turned set-screw and told more; them not to do it adjust (to rolls) morning screws were set of a they generally day; adjust- all run the reason for ment was the difference in the that is all corn; he told plaintiff morning; things to do that there are additional you once ain while “that do;” tell fellows to he knew plaintiff help choke-ups, would have to relieve and that helped plaintiff boy coál; unload he knew and his did except all at corn mill that was done what he himself plaintiff years did; he had known since was six old inexperienced machinery. and knew he was with Wit- employ ness had not been in the defendant com- pany giving testimony. for two before
“Lonnie” that he Jester testified never heard his plaintiff anything father tell him and to do around the rolls; that he never saw around rolls oiling and that when he was once, them, and he then “monkey” told not to with these rolls; duty it was his father’s set that his rolls; father was there about once an he never hour; saw *8 doing anything told him not to do; father spout up plaintiff a choked he and would unchoke it. working Cross-examination: been in Witness had year a corn mill about was fifteen; he and —since charge mill; had his father was there —he was foreman of the corn his duties mill; away keep all the time; elevator wit- did when father there; ness oiled sometimes they was not day. up It would often oiled twice choke —some- day during at all times it not c'hoke some- day. times once or He was then asked twice about persons he made to other as to statements accident Yol. Majestic Milling
Berry v. plaintiff’s which he denied he In re- duties, made. plaintiff introduced these testified witnesses who buttal only testimony made to but this them, to the statements credibility witness Lonnie Jester to the went necessary it to set out. it the close of the evidence for at the
At case the court overruled to the close of the demurrers defendant. There was verdict for evidence asked Spring- appealed plaintiff, which defendant to the from Appeals, which reversed the Court of field opinion that our court was cause said adjudicata remanding the case res reversal without action claimed defend- and was a bar to rehearing, Judge receded ant. On motion Bbadley opinion in the court’s and certified his concurrence Ap- of the Court of this court. the case to peals dissenting opinion are found 240 S. and the seq. 829W. et adjudicata: After the dismissal of
I. As res prior pe- in the said suit, second count to constitute a cause state facts sufficient tition did not merely first count because the action, of s^-a^e¿ Adjudicata. Kes negligent that defendant employed plaintiff it its than that reason no other age. mill This than sixteen was less specification law to con- charge not sufficient peti- objection negligence. An to the actionable stitute to state a cause of it failed first count tion to the good, the act of the because have been action would support un- Legislature relied legal view the situa- From a void. constitutional passed ever been as if no such law the same tion was petition. in the nothing about the law had been holding said act un- former case decision necessarily the first effect, held, constitutional to consti- sufficient simply facts state failed to count 284 Mo. said, the court Indeed, cause of action. tute a the defend- was introduced evidence “Before 189: *9 OP 302 COUET SUPEEME MISSOURI, Majestic Berry Milling v. Co. any objected tbe introduction of evidence because
ant petition a staté cause of action in fails to the first ‘the question.” the constitutional which raised But count,’ petition, of former which is count the second petition alleges in this different and case, same as those contained the first count of additional facts sufficient and are to constitute a former statute, of which of action. cause construction appeal, is. as on this follows: is involved 1919). (E. If action shall 1329 S. have “Sec. prescribed respectively the times within commenced been chapter, plaintiff 9 and the of this articles a for after verdict nonsuit, or, him, a therein suffer judgment judgment after a or, arrested, be him, appeal may such error, on or be reversed same time to time, within one a action commence new judgment year or such nonsuit suffered ar- after such or reversed.” rested subject much been the considera statute
This has suggestions have been There this court. tion this appeals a reversal of a the courts remanding the cause was under this without equivalent [Donnell of a nonsuit. but the statute citing Lumber c. Wright, 313, Mo. l. v. Lumber App. 248.] 72 Mo. Co., “In Case, Lamm, J., said: leav- in the Donnell
But (to guard it should be ing matter of the view this misunderstanding) question that the is not against here, opinion an decide, we do-not therefore, and, holding case at all on the has no facts court opinion followed law, and the only, issue identical the identical leaves reversal re-agitation open in a new suit—it meet facts question only when reached as dispose live ’’ by-the-by. obiter in a live matter case, question matter before this court a live But the where there 228 Mo. Eailroad, in Strottman of the author- and review consideration elaborate most delivering Court J., ities, Graves, Yol.
Berry
Majestic Milling
Co.
engineer,
an
husband,
ease the
In that
Banc.
alleged hy
hy
neg-
hilled
the
suit,
her
her first
was, as
telegraph operator
failing
ligence
a
deliver
of a
dispatcher’s message. Plaintiff claimed that at
train
operator
telegraph
and the
law her husband
common
they
com-
fellow-servants,
were such at
hut
not
were
they
fellow-servants under the Act of
were not
mon law
death
her for the
of action survived to
1897
a cause
and
judgment
act. She obtained
husband under that
of her
hy
appeal,
reversed
court with-
on
below
which,
227).
(211
Mo.
Afterwards
remanded
another
out
hy
against the railroad
contain-
instituted
her,
suit was
substantially
ing
of which were
the
both
same
counts,
two
except
that
in the first
one of'the
cause,
the
as
charged
negligence
suit
wanton
on
in the second
counts
prayed
part
telegraph operator
puni-
of the
and
the
damages.
judg-
statutory
held the
We
tive .as well as
adjudicata
in the first suit was res
ment of reversal
seq.:
In the us ease now before asserts new ruling under the but above in the Strottman facts, the Case opportunity lost his to assert the same in suit, new because he for no asked modification of the unqualified of reversal in first case. But may ruling it be said that above was obiter because presented facts second suit in the Strottman alleged were not new facts, Case but were the same as subsequent in in the first. But case of Ginnocchio v. l. Railroad c. Co., Mo. where the 521-22, same sub ject again inserting considered, court, after in quotation its the above from the Strottman Case, said: excerpt
“To break the force of the above says learned that counsel the facts the ease under re quotation pure the above considered, view is obiter simple. may Be as that we think be, it states the law correctly. At least it that as law which states bench practical unanimity and bar with have considered to be years. the law this State almost a hundred ' again question was same before this court the case of Railroad, 232 Abbott v. Mo. and we there refused to reconsider the views held the Strottman Case. We APRIL TERM, Yol. thoroughly that the rule is a convinced announced
are salutary are one. There maxims extant which substan- ought tially men be no twice vexed remind us finally obligatory is it action, with the same ably The rule so made to lawsuit. ve- an end be upon urged hemently counsel learned would vio- us spirit of these maxims letter late both long- a case ‘linked an action law make of sweetness litigants break their enable law- drawn out;’ and administer them to convenient sections suits into may expres- in broken we an courts borrow doses, profes- of another learned the nomenclature sion from ’’ sion. law. While the first count in think this sound We failed to state a cause of in this case ac- the first merits reversed trial on the and it tion there was had merits in that court because it no it was not employ plaintiff negligence a cornmeal actionable simply mill than sixteen he was less because age, in said first count. case was not claimed as of abatement on account of matter or de- reversed technicality, parties mere the merits fect of pleadings and relevant evidence -un- disclosed pleadings before the court. We hold that der the then *12 judg- reversal this court is absolute of when there an negligence plaintiff in the merits case on of ment for presented to the court and the cause is then the case as .hearing cannot for further not remanded setting up bring suit additional another afterwards injury. negligence charges same To of different plaintiffs to vio- enable such cases would be to do so scope binding law as to the well-settled late the judgments, is that when court has which effect subject-matter, parties jurisdiction its over only adjvMcata to as matters in is res parties could have to all matters issue, as alleged action or for the rea- defense, their to sustain split party up his cause action nor son that cannot adversary piecemeal the same cause more vex his Sup. 304 Mo. —20.
306 SUPREME COURT OF MISSOURI, v. [Melvin than once. Hoffman, v. Mo. 235 S. W. 464, Wright, Donnell v. l. c. 147 Mo. 114; 639, 874, S. W. Railways, cited; St. Louis v. United 263 Mo. cases Spratt Early, 174 W. 78, c. S. cases v. 424, cited; S. 199 Mo. 97 W. Leslie 925; v. c. Carter, 268 Mo. l. 1196.] W. 428, 187 S. therefore,
We that our hold, of reversal adjudicaba former case was res and barred the plaintiff’s action in this case.
II. think But we must fail on the merits presented. now his case It is as well settled an employee against personal cannot recover his master for injury performing unless at the time he was duties for pertaining employment his master to his ex- Negligence. cept under the same a stran- as circumstances person ger or third could recover from 'his master. [Stagg v. Western Tea 169 Mo. l. Co., c. 498; Schaub (cid:127) applies although 106 Mo. Co., 74.] Railroad This rule employee a minor. [O’Brien Western Steel Co., 182.] Mo. upon plaintiff burden was therefore to show feeling being of the eornmeal to test whether it was ground part properly duty awas rolls employment. gen- defendant under his It is true that in help eral terms hired he was “Lonnie” make meal, particular pointed but his duties were out to him and he being told to test see whether it was ground properly the rolls. Indeed, testifies did whether he not know he tell whether it could ing ground by feeling doing properly injured, reported and that he never the foreman thought time whether it it was properly ground says expressly or not. He that it duty the foreman’s to set the and that rolls, when the “monkeying” foreman “Lonnie” saw with the set-screw boys that set the rolls “he us had better not do that says set it.” Plaintiff also and said on the *13 injured just before he he had occasion was been unchok- Yol. APRIL TERM, y. Majestic Milling
Berry spouts again turned ing and had the corn in just fooling around I minute or two went “while was I was;” “I went a little to around to rest see where the roll ground enough.” being was fine roll and if purpose any employee Obviously feeling of of being ground .properly test whether the meal to was working prop- whether rolls were was to ascertain adjustment erly to needed make whether plaintiff says adjustment necessary, such not to but do, told him fore- he, the foreman think this do that. We was a sufficient com- man, to inform him that have mand to he was testing nothing with whether the meal was to do says ground properly could he himself he —which part duty was foreman’s order to tell—but that adjustment. It whether the rolls needed also ascertain feeling appears that he was not evidence any purpose in the for defendant of the meal only “fooling employment, around,” but was course of his attempted says, evidence so. His do when as feeling of the'meal on the occasion of his his shows that wholly injury vain far ac- act so useless and purpose complishing master was concerned. injured doing was not an that when hold We scope employer, employ- his or within the act his purpose idle of his for a mere ment defendant, peremptory own. Therefore defendant’s instructions given. have been find for the defendant should guilty contrib- also think III. We inexperienced utory negligence. true he It is age but he he went to work, fifteen mentally fop developed large age boy and well physically in the mill worked injury. three weeks before his Negligence^ where the rolls were, hands box purpose of his own within of the meal for some feel employment, scope knew that of his when’he proximity to the meal which rolls close were *14 SUPREME COURT OF MISSOURI, feeling, and that he could see the rolls at time *iot falling says on account of the meal. He he knew that got if he jured. his hands too close to the rolls would be in- danger coming in contact with the rolls apparent glaring boy was so obvious and that no age of his with normal mental faculties needed- to be fingers notified that his hands or they would be cut off if got between the rolls. contributory negli- hold
We therefore it was gence part put in this hands uselessly simply box to “fooling feel of the meal while he was says testimony the rolls,
around” as he in his doing injured. the time he was In this case machinery dangerous guard- securely safely required by ed defendant as the statute in such cases, notwithstanding raised the lid guarded dangerous box machinery unnecessarily his hand inside to feel the cornmeal purpose injured by for some idle of his own and was machinery. doing guilty such In so of con- tributory negligence judgment, aas matter of law our given and for that reason also the court should have peremptory instructions asked the defendant. Appeals right, of the Court of (cid:127) wrong. and that the circuit court case Plaintiff’s barred our former of reversal, and be- sides to make he failed out case on the merits. The judgment of the circuit is court therefore re- simply Lindsay, without case remanded. versed, G., concurs. opinion by foregoing PER CURIAM: The Small, adopted of the court.
C., Woodson and Ragland, paragraph concur; J., concurs in JJ., Graves, 2 and the T. result; Blair, J., James P. concurs in the result.