*1 obligation pay compensation to “The under the Workmen’s Com- pensation Act ... is absolute when fact is established that has arisen ‘out of and in the of’ employment. course significance It precise is no physical whether the harm was the probable natural and or the abnormal and consequence inconceivable single of'the employment. inquiry is whether in truth it did arise out of employment. the course that If ensues, death it whether likely immaterial that was the reasonable and con- sequence not; only question or whether fact death ‘results ” injury.’ [Sponatski’s Case, 220 Mass. 531.] employed change Leilicli was tires, to to but sell automobiles. changing clearly But. of tires in the circumstances shown the .evidence was a task incident his employment salesman. performance Out of of that task the accident which arose caused obviously why his true, split death. in trying This hairs employment trace a connection” “causal between his and his death. question
There can be no employee but this case at the happening time the accident which caused his death was engaged in, about, premises required w’here his services his services, presence part meaning within the as a such of Section Act, now Section Revised 1929. [Wahlig Statutes v. Grocer supra.] Appellant next can insists that total death benefit per under the $6,000, is, $20 be awarded Act is week for 300 question Wahlig presented weeks. The same wras Co., supra. painstaking Grocer After con a careful provisions Act, sideration the relevant adversely Nothing appellant’s ruled can insistence here. construing provisions of Section
added to what is there said in 21 and into it ref parts incorporated those of other Act ; obviously sound. follows erenсe the construction reached is appellant’s head must be overruled. contention- under this judgment All concur. is affirmed. of the circuit court Packing W. Muehling Appellant. Sam Company, Gordon v. (2d) 693. One, June 1931.
Division *3 appellant. Angert Jones, Hooker, 8ullwan & *4 Aschemeyer P. Frank Banister, & McBoberts Leonard, Sibley ] respondent. I *5 STURGIS, appeal C. This case is here on defendant’s a judgment damage verdict and court plaintiff’s favor in a personal suit for injuries. injuries Plaintiff’s from his hand arose caught sausage-grinding and a machine, mashed in which he operating was packing plant defendant’s meat in a suburb St. Louis. question There plain- is no as to the fact manner of injuries. tiff’s the action is negligence, AYhile based on defendant’s petition the and is-framed trial had on the doctrine of res was specific negligence. rather than on petition alleges, supports, prin- the and plaintiff’s cipal general allegations instruction is based on and facts: these packing operated plant
The defendant and maintained and a meat grind- part sausage operated therein and as thereof maintained and a n ing machine, employed was This operating. which grind- operated sausage-grinding power in was machine electrical main ing the sausage products, meat other and consisted into and passed hopper placed a and from thence into which the meat was revolving hori- shaped like screw and into a “worm” or “snake” forced and zontally hopper, which carried at the bottom of the and which cut and through revolving knives “plate” and the meat this power turned ground sausage. it The electrical into off means machinery on or was turned other worm or screw the power was machine. front placed two buttons on The. black pressing grinding machine started turned and the AVhen red button. by pressing the button, stopped was when operating, worm, good properly order and machine was press- except on revolve still, start stopped standing would not t.o intervals, at necessary, as was it ing it ivas black AYhen button. grinding of one changing the especially machine, ivhen clean by pushing off power -was turned kind, to another kind of meat worm, etc., knives, stopped, button, the machine the red parts other cleaning worm and After and washed'. were removed meat- further ready get they replaced in the machine were necessary machine worm in replacing grinding. hopper into arm hand his to reach operator for into a same square end fit of the worm take hold with contact hand in brought operator’s square This socket. *6 the worm or screw, and should power the then be turned on and’ the worm revolving started to great there was danger of the hand being caught and crushed. alleged
Plaintiff further proved and that on June he in employ, operating defendant’s sausage the question, machine in and job had finished one of meat-grinding, stopped had the machine and had removed and cleaned the worm parts, and other and was" putting place; the same back in adjusting that while he was fitting worm square and the end socket with his hand hopper and purpose, hold the worm for that machinery such rest, aji at unexpectedly the same suddenly, and in extremely un manner, plaintiff’s usual prior and knowledge without and without being pressed, the black button started in motion and commenced to1 operate, revolving caught with the result worm and crushed plaintiff’s wrist; plaintiff hand and know does not the cause starting or causes of operation the sudden and unusual and of the machinery, but that the same was due to the and care any negligence lessness the defendant and was not caused charge con plaintiff; that defendant had sole and exclusive and machinery appliances, has within trol of said and and had and now workings sausage-grinding knowledge all the work and of said its appliances furnishing and connected therewith and and machine that, operate regulating power; plaintiff’s duty was to motive sole machinery anything to do .with the did not have and that he said care, keeping machinery, maintaining of or the keeping or such order; ma working that he was not a repair proper same in ignorant construction- of the and was and is electrician chinist or appliances connected sausage-grinder and the such and mechanism of by the occasion was done work he did on this therewith; that the charge thereof supervision of his foreman and under the direction for defendant. general al- than the charge of other is no direct There while, starting" machinery unusual sudden and legation that the connection, its worm into adjusting putting the plaintiff was press- knew, without far as any cause so known without provided for only way intended was the ing button negligence and result of proximate starting it, the direct “was defendant.” carelessness of though contradicted which, by plaintiff, produced believe, evidently right did had many respects, these, his actions plaintiff testified allegations. supported completing button on red machinery by pressing stopping headcheese, made onions of meat and lot grinding of a direction, parts and- removing worm and then, foreman’s at hot. cleaning with a hose and thorough machine whole giving the water; place that be was fitting then worm in at the bottom of hopper inserting square the end in the socket the usual manner many and in the manner he had done this times before it; any and had been instructed to that suddenly, do and without *7 cause, machinery operate, catching the started to revolve and and crushing right ampu he had the his so that later to have same hand only way the wrist. tated Plaintiff testified that the start above press machinery button, positive the was to the black was that and occasion; anyone he neither nor touched the button on this that else It w'hy operating. or he did not know' howr the machine started by power to clearly the whole evidence that the motive shown, is sausage electricity operate power from a machine ivas start and this brought for to the machine over wires constructed motor of defendant off to purpose. This electric was turned on and start power that- manner pressing in a stop by machine means of buttons and the by that was shown though understood few7. It everyone, familiar circuit break the electric pressing the would make or the button press while the a was shown that at what is termed switch. also closing the only way ing of was intended the black button the any manner, yet closed circuit, if circuit electric was intended, that connection than or contact or short .circuit different being power pass to and complete, the would circuit or connection starting machinery. brought -this which about defect start sausage-grinding but machine machinery in the was not power the electrical or connection. first time not the showed that this ivas
Plaintiff’s evidence also pressing the black power unexpectedly without that came on and machinery cause. Plain- apparent started without button and this with- happened this had or three occasions tiff testified that on two had and connection particular machine in the six mоnths that this witnesses. operation. other was "this -He corroborated been line charge of general the foreman evidence also that w¿s pressing the starting without up of this machine of‘work told pre- workman how-to another and button, thai he told and plates two metal paper by placing-a piece between vent this— especially water, and that There ivas also control. evidence the switch or was used more packed, which meat ivas water in salt good was a con- apparatus, machinery switch about this less circuit might electricity complete the broken without ductor of been, had that work evidence also pressing button. There was starting of the ma- prevent in order by an electricián done pressed. chinery button without its de appeal is on this The' defendant insistence first sustained, have to the defendant murrer evidencе been should incidentally argues petition tbe based the doctrine of res in a case between master specific
servant does not state a cause of action-no being pleaded proven. master petition offered, No demurrer to the and plaintiff point sufficiency petition makes evidence, cannot be tested to the demurrer practice challenging sufficiency that our courts do not favor the by objecting petition However, to the thereunder. evidence petition, we that the does not if the here find aid proven action, facts are not sufficient to show cause of then pleaded action, facts vice are sufficient to state a cause and. however, petition,
versa. The
after and substantially
modeled
petition
follows
discussed and held
to state a cause of
sufficient
Printing Co.,
Tiernan
aсtion in Ash Woodward &
S. W.
Ferguson
(2d) 918;
Nelson v.
8 W.
and in
Heinz Stove
Works,
App. 525,
v. 229 S. W. State ex Pack Co., Askew See also rel.
ing Reynolds, Co. 287 v. Mo. 697. not that that
We do understand defendant contends the doctrine loquitur cases ipsa applies negligence of to where the res never and exists the and de relation of master servant between generally is The fact that doctrine fendant. this peculiarly applicable passenger to between cases carrier, person frequently cases between the to causing strangers, frequently and less the argue applies it servant, never when to master and does not that applicable, the this is where latter relation exists. That doctrine proper shown, the are as master and servant is too facts between made., general deeply and in to be imbedded law of this State the application In fact, a of serious the matter discussion. this a, not the case is determined relation dоctrine to goes question of parties other, the but to the the burden to each proving negligence-a applicable evidence and methodof the rule phrase negligence. sufficiency The Latin show speaks;” thing itself ipsa loquitur” literally means that “res “the itself, is, with its circumstances and condi the accident attendant negligence. tions, doctrine, this sufficient to show Under is jury merely is which the court inferences one reasonable may and circumstances from the accident and conditions make any of law without surrounding pure presumption is a it. Tt not good or in way, character presumption evidence either like safety which attends own care his of crime or reasonable nocence from shown, an every contrary rather is inference till but man Cyc. 34 1665, In particular which are shown ease. facts phrase general way saying Lаtin is defined “a as upon circumstances an accident attendant are of themselves of such justify jury inferring negligence character a as to the cause ’’ Cunningham Y. Dady, 152, 155, that accident. In v. 191 N. of. 83 N. E. meaning is, is said that “the of the maxim that the 689, thing negligence,” in Ennis res, of itself is evidence (N. Y.), 361, Supp. 379, 87 Hun 34 N. Y. said Gray, 355, it is very imports in which applies that “it cases occurrence itself negligence.” City Co., In Jenkins v. Paul 105 Minn. St. Railroad “Ordinarily, W. 504, 928, application 117 N. 510, this is said: principle depend par upon does not relation between except indirectly, ties, so far as relation defines the measure duty Manice, 166 Y. imposed N. the defendant. [Griffen successfully cases in which the servant has There have been 188.] against presumption invoked it his referred to master.” “The less is, however, law but correct one of of fact. more presumption; confusing an rather than as to refer to it as inference fact, an law draws from the but and not a.n inference Brick authorized draw.” inference which the are [Palmer E. Chenall, Co. v. Ga. 329.] application of Corpus stating that the Juris after cases has been to master-and-servant doctrine of res hand, although there “On the other denied, it is said: at times among the confusion and some seems considerable conflict to be as between master the doctrine application of relative to the decisions class of apply generally that it does held servant, it is ’’ large states, ease, citing number of from a proper cases in a actions Co., 279 Mo. Constr. Prapuolenis v. Goebel including Missouri: Ferguson 480; v. Fulton Distilling 358; Klebe v. Parker *9 811; Taul v. Askew Sad W. App. 259 S. 525, 220 Mo. Works, Iron etc., Louis, v. St. 420; 229 St. Clair W. dlery (Mo. App.), Co. might many be 519; other cases App. Railroad “especially a doctrine, applies where says text, the This cited. ratе, the any At rule. the fellow-servant has abolished statute ruling, inference of the requiring a different of a statute absence happening deducible, mere the not from is uegligence the master of circumstances.” attendant accident, but from the of the 63, Murta, 55, the said: App. court 165 Capehardt In inference from reasonable as a appears negligence itself thus “Where may jury, it be found there before the the facts and circumstances Tn exist, mentioned. presumption above wholly aside from the to from affording infer reasonable eases, facts and circumstances such the duty are sufficient their breached that defendants to effect ences the party upon the adverse exculpation fault onus of cast the to case.” prima-facie make a
Speaking of further the in question, Corpus doctrine Juris, says: further dispense “The doctrine does not with the rule that party alleges negligence prove the who it; must on the it contrary, only determines the method of proving it, or what shall be prima- negligence faeie evidence of a certain class cases.” of when ipsa loquitur As to doctrine of the applies, Corpus res 976, says: Juris, applied “The doctrine is or the is drawn inference only thing when the causing injury condition the is the under management exclusive control and of the master, ordinary experience usually negligence the happen accident does not without . part. on the master’s . . reasonably and what can inference determine; drawn from facts is often to be difficult the ac- if cident not so uncommon a character as is to evidence of furnish of negligence part defendant, of apply. the the doctrine does not is sometimes said that inference is allowed from necessity when clearly the causes of an cannot be shown injured ought party employer, to known to that is the inference not otherwise drawn.” Ruling page Law, Case section find we this state- largely entirely if
ment of the law: “The conflict has not subsided recognition ipsa loquitur an in favor of unlimited the doctrine res applicable injuries employees, to provided as cases to facts bring particular are such as case and circumstances to within proof scope generally Mere doctrine is understood. employee injured engaged in fact an has been while of the that certainly prima-facie not make duties sufficient to a case his recovery. produced it that has not material evidence appears If he proof injury does not easily within the mere of the raise his reach employer. But requires where rebuttal an issue instrumentality appears have been under control offending requires justice knowledge superior employer, within the re,s ipsa doctrine upon explain occurrence—the called he be happening of an broad mere loquitur applies. The rule is the ac- causing whenever injury is accident things happen, does ordinary course such as in the cident is . . . The management proper use care. who if those have injuries apply to caused ipsa loquitur held to has been res doctrine starting machinery, unexplained etc.” falling, the scaffold why doctrine res are two reasons There (1) The courts of case: in this presented facts applicable ab holding automatic and unite other states this and ought to remain machine when starting normal *10 uart of the on evidence rest the instal master, aрpear facts if the further ap- machine and repair duty inspect lation, upkeep and 134
pliances master, are with injured servant, and not with who ignorant opportunity of and without to know the mechanism and operated, same is and when the defect and cause thereof are how peculiarly knowledge master, within the then the doctrine applies. 64; 109 Dold, mentioned v. Mo. Ash v. Woodward [Blanton Printing & Tiernan 199 Co., 994; Co., S. W. Nelson v. Heinz Stove 8 (2d) 918; Mfg. (2d) S. W. v. 20 S. W. Co., Kitchen Schleuter 676; Century Uhl Co., 127; v. Elec. 295 S. Laun W. Lowe v. Fox Co., Packing dry 857; 274 S. 224 Co., W. Heckfuss v. American 99; Packing Reynolds, 697; S. W. State ex Co. v. 287 Eck rel. Mo. Wagner Co., Langley v. 235 S. 117; hardt Electric W. Cochrell v. Mfg. 317, 244; Plymouth 63 Co., App. 5 Ga. S. E. Cullalucca v. Rubber 392, Dagis Mfg. Co., 956; Co., 217 Mass. 104 N. E. v. 213 Walworth Rogers 620; 387, 100 54 524, Co., Mass. N. E. v. Portland Lbr. Ore. Quidnick 514; Mfg. 601, 102 Pac. 103 Pac. v. 27 Co., Petrarca 265, 648; Gammage R. 61 209 (Tex.), I. Atl. v. Gamer Co. S. W. plaintiff’s (2) injury was due to some defect in the 389.] furnishing meat-grinding appliances power rather than in the peсuliarly owing machine, applicable where, and this doctrine is dangerous current, character of an electric the subtile appliance to the servant is due to a electric defective light. controlling [Ferguson power or ftuToishbug 811; App. v. Fulton 220 259 W. v. Works, 525, Iron S. Taul Saddlery Light Askew 229 & Power Co., 420; S. W. Arkansas Co. Georgia Jackson, 359; Neary v. 166 267 v. Public 633, Ark. S. W. 123 893; Enzler, 27 107 v. Co., App. 238, Service Ga. S. E. Goddard 462, App. 805; City 222 78 108, Ill. Ill. N. E. of Decatur affirmed Young-Hartsell Eady, 577; v. 186 Ind. 115 v. 205, N. E. Cochran 149; Co., Raleigh 114 Co., 57, Haynes Mills 169 N. Gas C. S. E. 344; C. Co., N. N. 203, C. S. E. Turner v. Southern Power 150, 168 W. 767; White, 69 S. E. D. N. Leiferman v. N. which this connection the classification of cases to See 569.] where, citation Corpus Juris, applies in the notes to 39 doctrine many will be found. other cases reply we find this statement: Tn defendant’s brief filed herein petition plaintiff’s "In our contention answer application of do not make out a case for the the doctrine servant, eouu- loquitur between master and of res have, subject. learning no sel set forth new Dold, 64; Eck 109 Mo. Blanton v. They rely upon v 117; Co., 235 W. Ash Wagner Elec. S. hardt Co., 994: Printing 199 S. W. & Tiernan Woodward 515. 300 S. W. Co., Supply & Steam Meade v. Water (2d) 676. Mfg. 20 W. Kitchen v. Schleuter *11 by upon “We aware that the are cases relied counsel for the re especially spondent, ones, in support the later counsel’s contention seriously It is have asked this ease. for that reason that we the -court application to reconsider the the doctrine res to upon by master and servant cases. none of the cases relied- re gone thoroughness spondent has matter been into with the- which justifies. application the situation The he the doctrine should re happening to stricted those cases wherein the (cid:127)accident and bespeak negligence. themselves do otherwise circumstances To unjust will make the master an insurer and lead to and ridiculous -originally results. was never the intention of the court extend to respondent. Thus, as now for doctrine contended counsel for original brief, Judge in pointed out in our Hamilton as Ellison, points Railroad, 619, clearly v. 123 Mo. Blanton App. out that v. Dold, theory that in -make was decided on the order to occurrence, by proof master ‘it be such an liable of the must proof negligence occurrence “as on its face.” There carries n were Dold, circumstances, Judge v. as held Blanton Baroday negligence in the mere fact of fall of as indicated addition to the culvert.” pressed Hamilton our the ‘cases of
Defendant has attention App. v. Construction Railroad, Removich (2d) etc., Ry. Co., 30 S. W. Louis, 43,Mo. and Stewart v. St. for 1000, 1004, holding a than contended different doctrine care, cases with but case. We have examined these plaintiff in this holding our views-in this сase them inconsistent with do not find action, to constitute a cause of petition states facts sufficient that the sustained, should not have been the evidence and that demurrer to any alleged. es prove Nor do we find since it is sufficient the facts those later cases just mentioned and sential conflict in the eases support plaintiff’s contentions. concedes defendant ipsa loquitur application of doctrine of res The distinction earrier-and-passenger cases and on as between which defendant insists legal presump- pure is that in former cases master-and-servant passenger is mere fact arises tion of presumption, but the there is no such injured, while the latter be such must attendant circumstances accident with its drawing ah inference of justified will be triers of fact Railroad, .supra, case Hamilton therefrom. Thus applying good reason-for think that there court said: “We The, servant. (passenger) and not class rule the latter n passenger in- The servant does. risk, while the not assume does (in the absence passenger for to a non-liability stances liability to the negligence) The instances contributory rare. are helpless frequent. passenger so nearly are not servant necessarily places lie himself in nothing the carrier’s hands. He knows of the carrier’s machinery, nor his methods, impractical and it is him to ascertain. Whereas part the servant is a serv- carrier’s ice. He opportunity has vastly greater in a degree pas- than the senger to ascertain greater the causes which led injury. to the part just passenger of what we have equal stated as to a applies with *12 stranger may reason to a injury; who suffer and so we find the courts extending presumption against tо him in aid of his evidence party charges wrong. foregoing he with the The considerations good have occurred us as reasons for a distinction between classes persons. . . of . is, however, authority There based the best showing reason, of may by that servant’s case be made out mere proof injury of the occurrence which caused the in those instances itself, presumption, where the without the of a occurrence aid shows negligence. In passenger, seen, of a case as we have the occur- may negligence rence itself not presumption show and the comes to But, case, his relief. in the servant’s if the occurrence of that is nature, itself, which, of pre- shows without a the aid of may, just sumption, stated, by showing he as make a ease the oc- only. may . . currence . occurrence The shown he that nature of degreе any ivhich probability happened could not have without a of proof cause. Its is tantamount to the direct affirmative proof negligence. of think necessary We it would not be that the oc- possibility currence should be such any happened as could not have negligent cause, getting without a beyond, for that would be requirement evidence, especially cases.” in civil of including then cases, court reviews a of number Missouri Dold, 64, later, of Blanton v. that Mo. which we will mention says: ought any and then “We not it to be do believe said may ground position cases afford for that a servant aided these be making presumption necessary a out is his ease. that he produce this, tangible negligence, as evidence of his master’s just sup- seen, may in some instances we have the occurrence itself ply for him.” Co., reasoning of court in Removich v. Construction along
Mo. is this same line. speaks court the two The difference or distinction which the cases, think, difference in the facts will found in the classes we be thereto, in all applicable rather than the rule law' servant, cases, or master and passenger that of and carrier whether requires ipsa loquitur that the res—the means and res the doctrine speaks supports an in- accident and attendant circumstances— Dold, leading of Blanton v. negligence. Thus in case ference of operating mill” for injured a “blood was was con- packing That machine so grinding in a house. blood dried starting tliat its governed by strutted was stopping moving a lever, but on this suddenly occasion it started without the lever moved. applied ipsa The court loquitur, the doctrine res and said: “ question It is sometimes a close to determine what inferences from reasonably may drаwn; enough it is present pur- but for our fads say pose we opinion are of the that where such machine motion, this starts into entirely out of its usual manner of its bar, operation, as shown the. case at prima- its action affords facie original some want care its construction or condition, calling explanation party responsible from the ’’ therefor. Wagner Mfg. plain 235 W. Eckhardt Electric injured operating cutting press by tiff was while he was reason suddenly apparent falling of the crosshead and without cause on and crushing his hand. This said: “In court en banc there view rulings the numerous in this in which the res State doctrine of applied servant, has been in cases between master necessary question. Especially perhaps to discuss that alleged have true in cases where the to the servant *13 knowledge by peculiarly within appliance the and been caused some master, ignorant. of which servant was control of the the [Pra Co., petition puolenis The au v. Mo. Construction 367.] ipsa loquitur, invoking of of res or that the the doctrine thorizes may any issue, well negligence, fact in established as like other be means by other as from more direct reasonable facts inference from defendant, to proof. attempted, by the plaintiff as directed of operation which, of ac with construction and operate a machine the of testimony, not' familiar. The crosshead cording he was to his may . injured. . . inferences What fell, he was same and often difficult to determine. We reasonably facts it is drawn from however, held, of a machine starts where than once have more opera manner entirely from its usual of motion, different its own bar, tion, of prima-faeie of such want such fact affords as at (‘аre explanation from f.or an to call in construction or condition ” Dold, 109 64.] v. Mo. the defendant. [Blanton v. ipsa loquitur from Blanton the of of law res This statement Dold, Ash v. in case Woodward quoted with the of supra, approval plaintiff was in Co., where the Printing 199 S. W. Tiernan & cutting paper starting machine jured of by the sudden by stopped properly started caught was This machine his hand. automatically started this occasion operating only, on lever but an knowledge of no plaintiff had moved. the lever without stop it, and to start except hoiv of machine the the mechanism maintenance, keeping or inspection, charged its with was not pleadings both a's to applied question was repair. The doctrine and evidence. The large court cited a number of cases this State following approving this doctrine, and opinion, said: “In our overwhelming weight authority, .the in cases bar, the one at like jurisdictions, in other expressed are with by accord the views this court in Dold, Blanton v. supra.” many The court cites cases from holding. states so other case v. Co., Nelson Heinz (2d) Stove S. W. 918, the :In
plaintiff, employee an defendant, injured was the sudden unexpected starting up punch press of a operating. which he was It was conceded this court that of “presumption doctrine negligence” applied res to the facts and that rebutting the burden of negligence upon the inference of was defendant. approved The court telling instructions in that case jury case was bottomed defendant’s and that unless found negligent that defendant was “in connection operation with maintenance, machine,” and control find for “Conceding defendant. The then said: court that under pleadings proof res-ipsa loquitur this was a cаse and that presumptive negligence ap the doctrine of part on the of defendant plied, it cannot be said that did not have the burden of proving in pre the first instance a state of facts from which the Railway sumption negligent. would arise that defendant [Bond o., “presump evidence that the term 987.]” .is C negligence” thing tive means the same as inference proven. from the drawn facts Distilling court, while Klebe Parker this
denying application hand, doctrine the ease then quoted the rule of law the means and instrumentalities that “where employed peculiarly knowledge master are within his explain cause position under his control and he is a bettor injured party, proof than the then the burden accident disprove “This upon negligence,” him to then said: rests *14 however, of it rule, broad ... is limited to that class cases where according which, appeаrs that was of that kind to com- the accident except experience, usually from mon does not occur some fault servants, imperfection in his from some the master himself or of or . . appliances. . While the institution its or machine] [of may stronger applying common there reasons for the rule to any persons, yet passengers than to class of we are carriers of other good no reasons prepared there are persuaded not or to hold apply proper in for-holding to master and servant does not rule upon exist; but, the other does not cases, nor hold such a rule to exists for its for the rule that where the reason hand, we think equal applies servant, with force it and application between master common it does to carriers.” and effect as Ferguson In v. Fulton Works, Iron App. 525, Mo. 259 S. W. St. Louis Appeals applied Court of this doctrine to an in- by received operation unusual and erratic of an automatic hammer,
air and said-: "‘In Missouri it is now that, established as between master and servant, many the rule applies instances. The ipsa rule loquitur may of res many be invoked in and master servant cases it is applied as this State when the means and instrumentali- by used ties the servant peculiarly knowledge are within the and un- der the master, control and under such circumstances the position is much better explain master to the cause of the accident injured party.” than the This is a well considered case and cites many jurisdictions. eases both from this and other Co., the late case of Supply Meade Missouri Water & Steam injured unexpected the servant was sudden and riding fall of an elevator which he was and which was intended operate automatically stationary to so as to stop and remain on reaching building except floor second of the and descend pulling purpose. On occasion cord for that it descended or allege plaintiff: and was to pulled fell without the cord unable doing court, reviewing prove specific or cause This after of its so. large cases, including Railroad, supra, number of Hamilton supra, “A Co., prima-facie Removich v. Construction said: case
and only ordinarily of a which does not is where the accident is kind made except himself of his serv- occur, from some of the master or fault imperfection in institution of the machine or, from ants, some cir- only appliance question, where also nature injured party is not of the occurrence indicate that cumstance charged, by party reason cause, but position explain the in a to explain thereby position to know, in a greater opportunity his or, to over- at least negligence, himself free it and to show of the nature reason to have arisen presumption held come the injury.” resulting in the occurrence and circumstance res are the doctrine features of The distinctive neg- specific pleading proving plaintiff of relieves the general negligence, that proving pleading aird but not ligence, support will circumstances such attendant is, the accident when this find; and jury must which inference an -preventing the rebutting the inference the burden is done v. Con- Prapuolenis As said finding is on the defendant. jury so applied ‘‘is between 367, this doctrine struction is caused servant servant, where the master knowledge of the and control peculiarly within appliance some which he had ignorant with the servant master, applied taken and law view nothing This sаme do.” Saddlery Co., v. Askew in Taul *15 Appeals City Court by Kansas operation W. S. where the was received in the' power operated by electricity. press The machine started au tomatically apparent and without cause. This court in the more Co., Mfg. (2d) recent case of Kitchen v. Schleuter 20 S. W. facts, again quite similar as to its the Missouri case reviewed including subject, cases on this Hamilton Railroad and Removich again adopted ipsa loquitur Construction rule of res reason, is small therefore, as between master and servant. There appellant’s given question insistence that this court has not thorough questions consideration which it deserves. Few serious and thorough received and serious consideration. have more grant, therefore, appellant’s that, will insistence as be AYe ipsa loquitur least, master and servant at the doctrine of rеs tween cases the accident and its attendant should be limited to where speak negligence, or, said, “it must circumstances be such an However, proof of face.” occurrence as carries its practically are, think, we unanimous courts of this and other states holding complicated pow that when a somewhat and the machine operating are furnished the master for the servant’s er same work, operated doing and is so constructed as use master’s device, simple a. mechanical such controlled servant or button, switch and which is not intended to start as a lever or device, the servant has stop except on servant’s use of such operation knowledge knowledge as to its other than or no means charged keeping repair starting is not with device and condition, operate operating such machinе does start good automatically apparent causé, or in a different manner and without causing injury, accident and intended, then such than the servant’s speak it is such an do its circumstances attendant negligence on and casts on proof its face as carries occurrence having knowledge thereof, the burden of dis defendant, peculiar however, hold, Such AYedo not proving negligence. is this case. its come plaintiff, in order to with do, that would have us as defendant sur loquitur, such a state of facts must show of res in the rule every hypothesis ex reasonable rounding accident as excludes must negligence. facts be such cept The attendant master’s negligence, not but inference of defendant’s raise a reasonable as to every other inference. necessarily such as to exclude negligence from the inference milst draw (cid:127)Y'11’!’ one, but a reasonable and it must be proven, facts reasonable doubt evidence and applicable rule to circumstantial Dyer v. Sutherland apply. As said in criminal cases does (2d) evi 1056: “This 1015, 13 W. Contracting Co., drawing inference that clearly warrant a would dence platform. fell from appellant struck piece of timber *16 is supported by Mucli inference strong- probability, and in order allowable, necessary for it to be it not is that the evidence exclude every possible hypothesis, as, other for a example, that work- careless dropped the hand, man timber.” On the the question other negligence speculation must not be based on or conjecture. mere therefore, We, appellant’s overrule the contention that doctrine ipsa loquitur apply pleading's does not to the in this res case. only complаined other error is the refusal of to the court
give pointed out, Instruction C. As defendant’s we have heretofore ipsa loqmtur applies to which the rule of res in which in a case plaintiff prima-facie case, has made a burden negli cast on the defendant to rebut the inference gence part on its negligent respect show that and to it was not in complained to the matter of. The undertook to this. defendant do claim, along does not well so, and could not do that its evidence this line such compel was a finding as to for it. Plaintiff’s evidence sausage tended to show this that was not the time mill had this first automatically operate being- to starter started without button pushed, and that defendant’s foreman had been informed of this defect, plaintiff prevent inserting had how to this a informed piece paper switch, plates two brass with between cоnnected right plaintiff later need had informed that it was all and he precaution. not take this we that it defend When remember was duty place to with a and with which, ant’s furnish safe duty is machinery work, with his continuous safe which to do non-delegable, question negligence one was defendant’s jury. proper was for the Of defendant to instruction course entitled question. plaintiff’s principal submitting this In instruction required only bringing the case within jury find, to not the facts was ipsa loqmtur, but find from such facts that doctrine res caused to start some was fact reason machine jury part. instance, was in defendant’s defendant’s on At injured plaintiff was does not “that the mere fact that structed- verdict; must sud prove him to a that he machine entitle hopper,” while etc. Defendant’s denly started his hand was along complete a defense Instruction undertook cover refused C for jury to return a verdict line and direсted defendant correct, To finding stated instruction. of the facts on a require finding enumerate and such form must an instruction ground part. every on its reasonable defendant by going C into with Instruction trouble this refused effect, it is too tells particulars, it narrow. defendr purchased sausage negligent (1) machine if not ant at its installation and (2) that the time of dealer, reputable plaintiff’s at the time of there were no visible same, defects in (3) defects, any, that the if such were of character that defend- ant not ordinary could discover with same care, (4) that such enough machine had long been use for defendant to discover defects, if any, ordinary care. requirement As to the first of this instruction, nothing there is show purchased from whom sausage defendant machine. What defendant meant was purchased that it power the electric switch and *17 control the General Company, reputable Electric a manu defect,
facturer.
however,
The
likely
was more
to be in the
upkeep
installation and
appliances
of the
in
rather
than
appliances
As
requirement,
themselves.
to the second
clearly
not be
appliances
would
sufficient if the
free from
were
duty
discovery
visible defects
of inspection
since
and
of latent
defects rested on
was
defendant. The instruction
at least mislead
ing
ignoring
in
duty
respect.
defendant’s
in this
v. Wood
[Ash
Co.,
Printing
999;
ward & Tiernan
ment are excessive. verdict reducing $4,000, judgment required a remittitur the trial court $21,000. amount is still excessive and Defendant insists $10,000 at reduced least more. The that it should be plaintiff laborer, forty- shows that was a common earning years per $150 month. age, one about injury right that he lost his hand. No other The result plain- permanent injury from the accident. The could or did result fact pain much from the that at the tiff was to have suffered shown charge attempted part surgeon to save a operation first plaintiff undergo had proved the hand. This unsuccessful finally operations necessary before it was found two or three further comparing just the wrist. On above amount amputate the arm cases, thе amount allowed other such damages in this ease with Wagner Co., 1181; 315 v. Construction Railroad, Mo. 220 v. Rose 890; Railways Co., 1067; 235 S. W. v. v. United Wolfe Parks S. W.
143 Payne, 915; S. W. 260 W. v. S. Leighton Davis Railway 691; Brock 986; Co., 266 S. W. v. Wells, Schroeder Henry W. Railroad S. where the W. injuries case,-we present were similar to those in the could well'hold $15,000 damages would be limit to the in this case. How large ever, plaintiff’s expenditures hospital on account of lor fees suffering and his medical attention unusual both in the manner attempts same, of' his should to cure the this amount $17,000. If, therefore, within ten be increased to will days $4,000, enter remiitil-ur in sum this case the further judgment $17,000 will affirmed and entered for as of the ease original verdict; otherwise, the the date of the case will be reversed Hyde Ferguson new trial. is so ordered. and remanded for CO., concur. foregoing opinion by Sturgis, C.,
PER is a- CURIAM: 'The All opinion judges dopted as the of the court. concur. Holmes, Deceased; of Belle Florence Matter of Estate R. *18 Trustee, Woodruff Woodruff Florence Holmes
Holmes Holmes. 40 S. and J. Howard Appellant, v. Robert Holmes (2d)W. 616. One, 24, 1931. June
Division