171 Mo. App. 507 | Mo. Ct. App. | 1913
Lead Opinion
Plaintiff sued the defendant in the circuit court of Greene county to recover the sum of $5000 on account of personal injuries received in the plant of the defendant in Springfield, by reason of getting his left hand caught in an unguarded cogwheel of certain machinery called a “rattler,” then being operated by the defendant in its said plant, while placing oil in an oil cup in close proximity to the said cogwheel, and recovered judgment to the amount of $1602.50. The plaintiff based his petition upon section 7828, Revised Statutes 1909. At the conclusion of the testimony the issues were submitted to the jury under that section of the statute, and also on the question of contributory negligence on the part of the plaintiff.
The case was tried in the circuit court on July 14, 1911. Appellant filed its brief in this court on March 4, 1912, assigning as error the refusal of defendant’s requested instruction in the nature of a demurrer to the evidence offered at the close of all of the testimony because, as it is said, the plaintiff did not prove that any notice had been' given to the defendant by the
Appellant, under the points and authorities in its' brief, insists that the accident complained of is the result of the contributory negligence of the plaintiff, but as that is, in this case, a question for the jury upon which they were required to and did pass, under full instructions on the question in behalf of the defendant, it is unnecessary for us to discuss the weight .of the evidence.
I am of the opinion that it is not necessary for us to decide whether or not the ‘statute changes the ordinary rule of contributory negligence, because this is a case, I think, in which a court should not hold as a matter of law that the plaintiff was guilty of contributory negligence, irrespective of any statutory provisions providing for the protection of the machinery. The defendant alleges the contributory negligence on the part of plaintiff to be that “he had upon his left hand a pad consisting of an old piece of belting with a slit cut in one end of the same and slipped over his hand and hanging from his left wrist, and that while plaintiff was oiling said rattler he carelessly, negligently and needlessly allowed said pad, dangling from his wrist as aforesaid, to become caught in the cogs of the rattler, drawing it into same and drawing his left hand in after it;” and also that plaintiff could . have shut the power off and stopped the rattler and could have removed the pad from his hand. There was testimony tending to prove that the pad was not dangling from plaintiff’s left wrist, but that he had it on his hand as used by all of defendant’s employees to protect their hands in working with the iron in defend
At the time this case was tried, it is evident that the appellant was cognizant of the opinion of the Supreme Court of this State in the case of Williams v. Railroad, 233 Mo. 666, 136 S. W. 304, holding that the above section of the statute did not become effective until after notice was given, and the appellant has-based its right to reversal by this court principally upon that proposition. However, in the case of Simpson v. Witte Iron Works Co.,-S. W.-, the Supreme Court in Bane unanimously overruled the Williams case, supra, upon the question of notice and held section 7828 effective without the notice mentioned in section 7842. Therefore, it is our duty to affirm the judgment of the circuit court which is accordingly done.
Concurrence Opinion
SEPARATE CONCURRING OPINION.
I concur in the result reached in this case. The case of Simpson v. Witte Iron Works, -S. W.-, recently decided by our Supreme Court and not yet reported, is decisive on the principal point raised by this appeal. The only other point pressed
If plaintiff’s conduct is to be judged by the same standard of what constitutes contributory negligence required prior to and in absence of the statute, section 7828, requiring such machinery to be safely guarded or notice of the danger to be posted, then it would be hard to distinguish this case from the line of cases holding such conduct to be contributory negligence as a matter of law. [Smith v. Box Co., 193 Mo. 715, 92 S. W. 394, Dressie v. Railroad, 145 Mo. App. 163, 129 S. W. 1012; Czernicke v. Ehrlich, 212 Mo. 386, 111 S. W. 14; Sanborn v. Railroad, 10 Pac. (Kan.) 860; Buttle v. Box Company, 56 N. E. (Mass.) 583.
While it is held in Huss v. Bakery Co., 210 Mo. 44, 54, 108 S. W. 63; Dressie v. Railroad, supra; Millsap v. Beggs, 122 Mo. App. 1, 7 and 11, 97 S. W. 956, that plaintiff may be guilty of such contributory negligence as bars a recovery even in cases where by statute the machinery should be, but is not guarded, yet I do not understand such cases to hold that plaintiff’s conduct as bearing on contributory negligence is to be measured by the same standard of. care or, more accurately, that such standard rests on the same basis in cases covered by the statute as it would be if such statute did not exist. In the case last cited, the court, in speaking of the provision of the statute requiring notices of the danger to be posted in case the machin
Suppose the case, as here, is one where guards can be placed and the defendant is required to guard the machinery rather than post the notices. What then takes the place of the “continuous notice as a protection against' what might, in ordinary respects, be termed the servant’s carelessness,” or the “constant warning in recognition of a failing in human nature?” Cerlainly the servant is not held to the use of a higher
The purpose and effect of this statute in modifying the rule of contributory negligence in cases covered by it by adding a new element to be considered is pointed out in the able dissenting opinion of Woodson, J., in Huss v. Bakery Co., supra, and while his remarks were held not applicable to the particular facts and instruction under discussion in that case, I think the law is there correctly stated and is applicable to this case as follows (page 72): “This instruction of defendant is based upon the theory that the common law prescribed the standard of duty the defendant owed the plaintiff in this case. That is not the law. Section 6433 prescribed a much higher degree of duty to be exercised by defendant towards the plaintiff than did the common law. Under the common law the defendant was required to furnish plaintiff only a reasonably safe place in which to work and reasonably safe means with which to perform his duties, while the statutes require the defendant to safely and securely guard the gearing when possible; and, if impossible, then to conspicuously post a notice calling attention to.the dangers. As a corollary to that increased duty of defendant, the care of the plaintiff was correspondingly decreased and the jury should have been told so in no uncertain words. ’ ’
This proposition of law also finds recognition in the latest decision of the Supreme Court, Simpson v. Witte Iron Works, supra, where it is said : “We think, therefore, that the lawmakers in conditioning the duty
This case is therefore to be distinguished from the line of cases cited by appellant holding that the servant in.somewhat similar circumstances, but where the statute did not apply, was guilty of contributory negligence as a matter of law; and the trial court did right in not directing a verdict for defendant on that ground.