214 S.W. 419 | Mo. Ct. App. | 1919
Lead Opinion
Defendant appeals from a judgment for plaintiff in a personal injury action. The plaintiff was injured while operating a gin stand in defendant's cotton gin by his hand and arm coming in contact with the revolving saws used to separate the cotton lint from the seed. There were some seventy of these saws on one axle revolving close together and between ribs which were part of what is called the gin breast. The gin breast could be raised so as to have these ribs clear of the saws and this left a space of one foot between what is called the spiked roller and the revolving saws. Plaintiff thrust his hand into this space to catch some burning cotton to prevent same from falling into the seed conveyor and thereby his hand was caught by the revolving saws.
The defendant's alleged negligence relates to the setting on fire the cotton, which in turn caused plaintiff to thrust his hand near these saws in an endeavor to prevent the spread of the fire, rather than to any negligence directly connected with the accident. The case went to the jury on defendant's negligence in putting wet cotton into the gin and having a worn and defective brush wheel (a part of the gin machinery) whereby so much friction and heat were created that the cotton being ginned suddenly took fire.
In the view we take of the case it will not be necessary to further discuss the cause of the cotton being set on fire as we grant that the evidence is sufficient to warrant a finding that defendant was negligent in the *480 respects mentioned and that the cotton being ginned suddenly took fire by reason of friction and heat caused by the worn and defective brush wheel operated by defendant and by reason of wet cotton being fed into the gin.
In this connection we may also say that we do not agree with defendant's contention that the petition is fatally defective, at least after verdict, in that there is no allegation of a causal connection between the negligent acts complained of and the resultant injury. We agree that acts of negligence on defendant's part and injury to plaintiff do not make a cause of action unless there is alleged and proved a causal connection between the two and plaintiff is only entitled to go to the jury on the grounds of negligence which he alleges caused his injury. [State ex rel. v. Ellison, 176 S.W. 11.]
In this case, however, plaintiff, after alleging that the part of the gin stand called the brush wheel and which assists in removing the lint from the ribs between which the saws pass was out of line and balance and had a tendency to create friction, then alleges that plaintiff was injured in operating said defective gin stand "in the following manner." He then alleges that defendant negligently started wet cotton through the gin without notice to him and that wet cotton has a tendency to create friction and heat; that the friction from the wet cotton and from the defective parts of the gin set fire to the cotton and that in order to prevent the spread of the fire to other parts of the plant plaintiff attempted to extinguish the fire by taking out the burning cotton with his hands in doing which his hand came in contact with the revolving saws. This we think is a sufficient allegation that these negligent acts of defendant were the cause of plaintiff's injuries, for when he alleges that he was injured in the following manner and then sets out the negligent act of putting wet cotton in the gin and that this and the defective parts of the gin which he had described combined to start the fire, in trying to extinguish which he was injured, *481 plaintiff has, we think, by plain inference if not direct assertion alleged such negligent acts to have caused his injuries.
The serious point in the case arises on the question of plaintiff's contributory negligence barring his action. Leaving out of consideration for the moment the emergency created by the gin taking fire and plaintiff's impulse to save his master's property and considering the case under normal conditions and as if plaintiff had done as he did in the ordinary course of operating the gin, we must say that plaintiff was guilty of contributory negligence amounting to almost gross negligence. Plaintiff was an experienced operator of a gin and was well acquainted with the machinery. He knew the location of these rapidly revolving saws and the danger of coming in contact with the same. He had on gloves and knew that this increased the danger of his hand being caught by the saw teeth. He punched the burning cotton between the ribs with one hand and then thrust the other in the narrow space of one foot next to these revolving saws to catch or grab at the burning cotton as it fell through and this too when he could not see into this narrow space so as to guide his hand away from the saws. On this point plaintiff testified.
"Q. You knew when you were raking your hand around there that that was highly dangerous with these saws revolving, did you not? A. I knew if I got my hand into it, it was.
"Q. You just depended on your own ability to keep your hand out of there? A. That is all the hopes I had.
"Q. You knew that if you got your hand in there it was gone? A. Yes, sir, I knew if I did, but I didn't think I would do it.
"A. As I was punching it out, I was reaching under and catching it as it fell. *482
"Q. And you say you knew the danger of these saws? A. I knew the danger if they got hold of me.
"Q. Did you tell him (a witness) after you came back that the saw caught your glove and pulled you in; that it couldn't happen any other way? A. That is about the only way it could happen to catch in this glove.
"Q. You were in under those saws catching this fire when you couldn't see how near you were getting to the saws? A. Well, I had an idea where the saws were.
"Q. But you couldn't see? A. No, sir, I couldn't see the saws."
Every witness in the case testified as to the obvious danger attending plaintiff's act in attempting to catch in his gloved hand the burning cotton falling through this narrow space next to these revolving saws, characterizing such act as "very dangerous," "awfully dangerous," etc. One witness, an experienced ginner, said he never knew of but one other man putting his hands "back of this board with the saws running" and he was killed. What is said in Smith v. Forrester-Nace Box Co.,
"Plaintiff admits that he knew if his hand came in contact with the rollers it would be injured. His only excuse for putting his hand into that small space between the presser and the back rollers is that he did not intend to put his hand where it would come in contact with the back rollers. But any man of ordinary intelligence would know that if he did so, the danger of injury was imminent, for the danger was obvious. Such an act itself suggests the inevitable consequences." [See, also, Doerr v. St. Louis Brewing Assn.
It is sought on plaintiff's behalf to justify or excuse his action in bringing his hand in contact with the *483 revolving saws on the ground that he acted in an emergency the emergency being the sudden fire in the cotton which threatened the destruction of the defendant's property. This raises the question of the right and to what extent the servant may commit an otherwise negligent act threatening injury to himself in order to protect the master's property when such property is imperilled by the master's negligence. In other words may a servant do an otherwise negligent act threatening his own injury in order to save his master's property from destruction and recover damages based on the negligent act of the master in putting such property in peril?
It is not claimed that plaintiff was in any peril. All that he claims is that on discovering the cotton on fire he was apprehensive that it might spread and destroy defendant's property and his reason for catching the burning cotton in his hand, as he punched it through the ribs of the gin breast, was to prevent its falling into the conveyor and passing to the seed house. Plaintiff did this without stopping the machinery as he might readily have done by pulling a cord attached to a whistle. Though plaintiff alleges negligence in that a certain lever by which the machinery could be stopped was defective and could not be worked, yet the evidence shows that he did not want or try to have the machinery stopped.
This case is clearly distinguished from the class of cases cited by plaintiff where a servant is excused of alleged contributory negligence when he acts in an emergency amounting to personal peril brought about by the master's negligence, such as Underwood v. Railroad,
It is the generally accepted rule of law that the person who by his negligence puts another in peril of death or bodily injury is liable to one who is injured in an attempt to rescue such imperilled person and that it is not contributory negligence for the rescuer to imperil his life or put himself in a position of great danger in his effort to rescue such person from peril, unless his act amounts to rashness or recklessness. [20 R.C.L., sec. 108, p. 131; Corbin v. City of Philadelphia (Pa.), 49 L.R.A. 715 and cases cited in note.]
Where, however, only property is so imperilled the decisions are by no means unanimous as to how far, if at all, this rule is applicable. Some courts hold that one voluntarily attempting to rescue property assumes the risk of so doing and if injured thereby the person causing the peril, though negligent in so doing, is not liable. Other courts do not bar a recovery where the rescuer has acted as a reasonable person would under the circumstances; that is, is without negligence under the particular facts. [20 R.C.L., sec. 110, p. 133; 29 Cyc. 524.] The cases on this subject are collected in the notes to Corbin v. City of Philadelphia, 49 L.R.A. 719. [McKay v. Atlantic Coast Line Railroad Company (N.C.) Ann. Cases 1914C, 412.] In the note to the Corbin case, supra, which deals primarily with risks taken to save life or bodily injury, it is stated that "voluntarily incurring danger is justifiable so as not to constitute contributory negligence only when it is for the purpose of saving life; if the purpose is to save property only this rule does not apply." Several cases are cited as so holding. A leading case on this subject is Eckert v. Long Island R. Co.,
"A person voluntarily placing himself, for the protection ofproperty merely, in a position of danger, is negligent, so as to preclude his recovery for an injury so received. It is otherwise, however, when such an exposure *485 is for the purpose of saving human life, and it is for the jury to say, in such cases, whether the conduct of the party injured is to be deemed rash and reckless."
And this language is used: "The evidence showed that the train was approaching in plain view of the deceased, and had he for his own purposes attempted to cross the track, or with a view to save property placed himself voluntarily in a position where he might have received an injury from a collision with the train, his conduct would have been grossly negligent, and no recovery could have been had for such injury. . . .
For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence, which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent unless such as to be regarded either rash or reckless."
The doctrine has been affirmed and adhered to by the New York Courts, Morris v. Lake Shore Ry.,
In the Eversole case and in the New York cases followed by it, the rescuer was a third party and not the owner or a servant of the owner whose property was in peril but in the McManamee case the plaintiff was attempting to rescue his own property. A person seeking to save his own property should be accorded as favorable a position as one attempting to save his master's property, though a stranger to the property might be looked upon less favorably than either. The courts and text writers seem, however, to have made little distinction along this line and a number of cases deny liability in favor of the owner of the property. [Cook v. Johnson,
In Logan v. Wabash Ry. Co.,
We are not prepared to say that the law in this State is that a person attempting to save his own or his master's property when put in peril by negligence and is acting along the line of his duty takes all the risk of doing so and that his act in so doing is negligence per se. If the rescuer is not guilty of negligence in so doing he should recover. Such is the weight of authority. [29 Cyc. 542: 20 R.C.L., sec. 110, p. 133.] Nor do we hold that the fact that the person seeking damages was at the time of his injury attempting to save his own or his master's property of no weight in determining whether or not he is guilty of contributory negligence. [Prophet v. Kemper,
It is also doubtless true as stated in the note to this last case that the Missouri cases are on the side of restricting to narrow limits the effect which the fact of rescuing mere property has on excusing what would otherwise be contributory negligence. The most potent fact in favor of this rule is that the servant has no right to endanger the master in a far greater loss than that which he sought o aver. *488
We hold, therefore, that plaintiff under the facts here was guilty of contributory negligence barring his recovery and the judgment is reversed. Farrington, J., concurs. Bradley, J., holds that the evidence is sufficient to take the cause to the jury, and dissents.
Addendum
"The evidence before us does not show that the plaintiff was, in endeavoring to stop the team, undertaking something which, in the judgment of an ordinarily careful and prudent man, could be held to have been liable to cause him a serious injury. We are all the more of this opinion in view of the fact that in the present case the plaintiff is not a mere volunteer, but was under a duty by reason of his employment to take the necessary steps, commensurate with safety to himself, to control the horses."
If we could here say that plaintiff's act in thrusting his gloved hand in this narrow space next to the revolving saws and grabbing at burning cotton dropping therein was one "which in the judgment of an ordinarily care and prudent man could be held (not) to have been liable to cause him a serious injury" then the case is one for the jury. We all agree that such is the law but are not agreed that under the facts in this record plaintiff's said act is conclusively negligent. The majority of the court so holds but it may be, as is urged, that we do not fully understand the mechanism of the cotton gin and the physical facts connected with plaintiff's *489
injury. The evidence is not as full and satisfactory as it might be as to the inherent and necessary danger attending plaintiff's action. There may be evidence on another trial taking that question to the jury and a case should not be reversed without remanding unless the evidence has been fully presented and the court is fully convinced that the facts are necessarily such that plaintiff cannot be allowed to recover. [State ex rel. v. Robertson, 187 S.W. 34, 36; Finnegan v. Railway,
