95 Mo. App. 47 | Mo. Ct. App. | 1902
The plaintiff recovered judgment against the defendant for personal injury re
From the evidence it appears that the putting together of the printing press, of the dimensions of the. one in question, required the use of machinery. A foundation had been laid for the press, over which, and ten feet above the floor of the building, the defendant had constructed its machinery for hoisting and moving the heavy parts in.place. This contrivance consisted of two hooks or brackets composed of cast iron attached to the ceiling, about twelve feet apart, which supported an iron rail which extended from one to the other. A carriage moving on two wheels could move along the rail, pass the hangers and travel to the ends of the rail where they would be stopped by pegs. A pulley was attached to this carriage through which a chain passed, which could be attached to the object sought to be lifted or carried. A man at the free end of this chain could lift a great weight. All this apparatus, except the block and tackle which belonged to the defendant, belonged to the Walter Scott Company, which had sold the press to the defendant, and its agent and expert machinist named Newmiller had been engaged to superintehd the work of erecting or putting the press together. ' -
The plaintiff, an employee of the defendant; was assisting in the work. While hoisting into position a large iron casting weighing from 2,200 to 2,500 pounds, one of said brackets broke and the block and tackle fell on plaintiff’s hand, he being at the time engaged in pulling on the end of said chain. It was shown that the brackets in-question were of a character in general use, and had proven safe, and had been previously
As the defendant contends that if the plaintiff is entitled to recover, which is denied, he can not recover on the facts proven on the allegations of the petition, we insert herein plaintiff’s abstract of said petition, as it seems to state fairly all the substantial allegations contained therein, to-wit: It avers “that plaintiff was employed by defendant September 11, 1899, as a laborer to labor about and' clean the parts of a newspaper press; that defendant undertook to elevate a certain heavy casting, weighing 3,000 pounds, from the floor by means of a chain, block and carriage supported by a certain track and hangers; that while plaintiff was engaged in his duty and was hoisting said casting, said hangers broke, and the carriage and its wheels, the chain, block and tackle rolled off the rail and fell on plaintiff’s left hand, bruising, wounding and crushing it so that it became necessary to amputate the second finger; that the injury was occasioned by the negligence of defendant in that the hangers supporting the steel rail were insufflciént in size and too light and weak to support the immense weight cast upon them; that defendant failed to furnish a sufficient number of said hangers; that defendant knew, or by the exercise of ordinary care, might have known that said hangers were defective, insufficient, unsafe, light, weak and insufficient in number, and that by reason of said injury plaintiff has been permanently crippled,” etc.
This court held in Holt v. Railway, 84 Mo. App. 443, that “negligence can not be presumed when noth-, ing is done out of the usual course of business, unless the course is improper, or there is some special circumstance calling for more particular care and caution. ’ ’ And this court, in Kane v. The Falk Co., 93 Mo. App. 209, held the defendant liable for injury received by one of its employees for adopting an unusual method of doing work which proved unsafe, thereby causing plaintiff’s injury'. “Whatever is according to the general, usual and ordinary course adopted by those in the same business, is reasonably safe, within the meaning of the law. The test is general use.” Mason v. Mining Co., 82 Mo. App. 1. c. 370; O’Mellia v. Railway, 115 Mo. 205; Huhn v. Railway, 92 Mo. 440.
But the plaintiff seeks to uphold the judgment of the lower court upon another phase of the case, and in order to understand his contention in that respect, it becomes necessary to enter into a more detailed statement of a part of the testimony. The iron rail that extended from one of these hangers to the other, extended at each end beyond or outside of the respective hangers, and there was a pin at the extreme end of each which had the effect of preventing the carriage from running off the rail. It was shown on the trial that when the accident occurred this carriage had passed the hanger and was resting just outside of it. It is claimed that this was not usual in operating the machinery in question, and that thereby an additional strain was placed upon said hanger, which was the probable cause for its breaking.
Witnesses James Hogg and William R. Thompson, who testified as experts, both give it as their opinion, that the hanger in question was not sufficient in strength to support the load lifted at the time of the break, while the carriage was several inches outside of the hanger, because the strain was greater than if it. rested on the rail between the two hangers. They estimate the additional strain by pounds, and we apprehend that their theory in the main is correct. But an examination of the petition, summarized by the' respon
Upon the evidence under the allegations of the petition, the defendant’s demurrer to plaintiff’s case should have been sustained. The cause is reversed.