126 Mo. App. 88 | Mo. Ct. App. | 1907
Action by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the latter. At the conclusion of the evidence introduced by plaintiff, the court instructed the jury to return a verdict for defendant, and the cause is here on appeal of plaintiff.
The injury occurred while plaintiff was engaged in operating an elevator maintained by defendant in a meat packing establishment conducted by it in the city of St. Joseph. The vehicle had been running all day carrying loads of freight and, late in the afternoon, plaintiff observed a defect in the cable by which the
Several acts of negligence are alleged in the petition, but the evidence introduced failed entirely to show the existence of any defect in the elevator or in any of the appliances connected with its operation. The safety catches did not act but, on cross-examination, plaintiff admitted they were .not designed to operate except in case the cable broke or became slack and, as the cable did not break and remained taut during the descent of the car, the condition did not obtain under which they should have been put in operation. The machinery by which the car was operated was situated at the top of the shaft and it was there the machinist repaired the cable. The car was stopped or held in place by means of a brake and wheel. The brake was operated from the car and when the operator desired to stop, he applied the power in such manner that the brakeshoe was firmly pressed against the periphery of the wheel. Plaintiff testified that the machinist worked in proximity to the wheel while he was repairing the cable, and that his hands and clothing had become greased from working around and wTith other machinery in the building. The only ground on which plaintiff is endeavoring to hold defendant liable for his injury is that the machinist, in some negligent manner, must have dropped oil or grease where it acted as a lubricant between the brakeshoe and the wheel, thereby preventing the brake, when the power was applied, from holding the wheel in place. To support this theory, plaintiff introduced an expert witness, from whom the following testimony was elicited:
“Q. Mr. Messenger, assume that the elevator is in good repair, and that this man, Mulvane, was up there*92 repairing the rope that was cut half in two, and the elevator was taken to the sixth floor, and immediately after it stopped, it fell instantly, and there was nothing wrong with the machinery, nothing with any part of the machinery of the elevator; could you tell what caused the falling of the elevator under those circumstances? A. Yes, sir. Q. What was the cause of the elevator falling? A. It must have been some grease on the bnll wheel. Q. Is that the only thing that could have caused it? A. Yes, sir.”
We will concede that while repairing the cable, the machinist was the alter ego of defendant to perform its duty as master which required it to employ reasonable care to provide its servant a reasonably safe place in which to work, and with reasonably safe appliances'with which to work and, therefore, that the negligence of the machinist, if any, should be regarded as the negligence of defendant. [Weldon v. Railway, 93 Mo. App. 674; Zellars v. Water & Light Co., 92 Mo. App. 119; Jones v. Railway, 178 Mo. 544.]
But the weakness of plaintiff’s case lies in the entire absence of fact or circumstance from which negligence on the part of the machinist reasonably may be inferred. We are asked to conclude from the single fact of the falling of the car that oil must have prevented the brake from holding the wheel; then to draw from that conclusion another, viz: that the oil must have been dropped by the machinist into the place where it wrought such havoc and, finally, from these two, to draw the third conclusion that the transmission of the oil was the result of some act of negligence on the part of the machinist. A judgment reached by such process would be the product of mere speculation and guesswork. It is not permissible to build one presumption on another and thus make a cause of action. A presumption to be valid must be based on facts and not on other presumptions. To hold that an inference of negligence might
The occurrence in question does not indicate the existence of a condition or event in its very nature so destructive of persons or property or so tortious in its quality as to permit, in the first instance, no inference save that of negligence on the part of the master, and, therefore, the doctrine of res ipsa loquitur invoked by plaintiff cannot serve to vivify into a cause of action the barren facts before us. The principles discussed and applied by us in the recent case of Hamilton v. Railway, 123 Mo. App. 619, 100 S. W. 671, where we fully considered this doctrine in its relation to actions arising from breaches of the duty of master .to- servant, when applied to the facts of the present case, necessitate the concluson that plaintiff has failed to make out a case to go to the jury. We refer to the reported opinion for a full expression of our views respecting the application of this doctrine to cases of the character of the one in hand.
The judgment is affirmed.
