188 Mo. App. 105 | Mo. Ct. App. | 1915
Lead Opinion
The plaintiff recovered a judgment against defendant for $7500 on account of personal injuries alleged' to have been sustained by him while in the employ of the defendant.
Plaintiff in the original petition sought to recover damages on the charge that defendant negligently and carelessly failed to cover certain machinery consisting of cogwheels and shafts on a boat used on White river in the construction of a dam several miles up the river from Forsyth in Taney county, Missouri. The suit was brought against several defendants. A first amended petition was filed against three defendants, not necessary to be discussed. A second amended petition was filed consisting of two counts, one of the defendants named in the original petition and in the first amended petition being dropped. The first count charged negligence in failing to securely guard certain machinery. The second count sought recovery on the common-law liability of defendants in failing to furnish plaintiff a reasonably safe place in which "to work, requiring him to perform duties at a place near the cogwheels where a hole in the floor of the boat, called a scuttle hole, was left open with no covering, alleging that owing to the position the plaintiff was required to assume in performing his duties by reason of the scuttle hole being left open he was subjected to unnecessary risk and hazard amounting to negligence on the part of his master. The third amended petition was filed against this defendant (appellant) and one other, the first count thereof going to the failure to securely guard the cog
At the conclusion of the evidence the plaintiff dismissed his suit as to all the defendants- except the Ambnrsen Hydraulic Construction Company, and also dismissed as to the first count of his third amended petition. The judgment, therefore, is based on the second count of the third amended petition wherein the charge of negligence is that defendant negligently and carelessly failed and neglected to provide a covering for the scuttle or pit on the inside of the boat on which covering plaintiff might have stood in safety while engaged in oiling bearings on the shaft; that he was required to stand on the inside of the boat astride the scuttie hole or pit, and by reason of being so compelled to stand astride said scuttle or pit his clothing and a raincoat which he was wearing at the time was caused to come in dangerous nearness to the cogwheels aforesaid and the said'coat was by reason of the position in which he was required to stand while so engaged in oiling said shaft bearings caught by the cogwheels aforesaid and the plaintiff was thereby injured.
As to his injuries, • the plaintiff alleged and the uncontroverted' evidence shows that his left arm was caught between the cogwheels that engaged each other and ground off near where the arm joins the shoulder.
The defendant brings its appeal to this court, charging numerous errors committed by the trial court which will be noticed in the course of the opinion.
The facts are that respondent at the time of his injury was a man about twenty-one years of age and had been working for a number of months in the construction of the White river dam near Forsyth, and that defendant was engaged in building this dam and that in this work several hundred men were employed.
The first picture shows the two cogwheels and right in front of them the scuttle hole. A shaft running through the top cogwheel continues on through the side of the boat to the outside on which there is fastened a small sprocket wheel. This sprocket wheel is shown in the second picture—-the smallest wheel there shown, or the one nearest the observer. This sprocket wheel had to be oiled at a place made therefor, by reaching out over the side of the boat and
placing the oil can so the oil would go in the oil hole or oil container. It was necessary for plaintiff in performing this task to stand with his left foot on the false floor of the boat and the other over against the side of the boat on the two-inch timber, and in this position to lean forward and out over the edge of the boat with the oil can. The evidence shows that a person oiling the sprocket wheel must necessarily hold
to the upright piece shown in the first picture—the post—with one hand and oil with the other, which would throw his body in a diagonal position with reference to the cogwheels and not in a position squarely facing them.
Other facts will appear in the discussion of the alleged errors.
Another reason assigned by appellant why the peremptory instruction should have been given against plaintiff is that the failure to cover the scuttle or pit was not the proximate cause of the injury but that it was a risk incident to plaintiff’s employment which he assumed. A vast number of authorities are cited by appellant on this point- from this and many other States, an analysis of which, however, convinces one that the facts of this ease are clearly outside the principle therein declared. The rule is thus declared in 29 Cyc. 491: “The primary cause will be the proximate cause where it is so linked and bound to the succeeding events that all create or become a continuous whole, the one so operating on the others as to make the injury the result of the primary cause.”
Neither can it be said that such an injury could hot have been foreseen or anticipated by the defendant. Here was a workman required to perform a certain task in a certain place. The evidence shows that no other way was possible or had been provided for oiling the sprocket wheel on the outside of the boat except the way in which plaintiff attempted to and did do it. The very physical condition that existed required that he stand in a somewhat strained position with his legs spread apart and necessarily in a position in which he would easily sway back and forth. He had no choice of two ways in which to perform this task. The evidence shows that plaintiff wore an overcoat or slicker, which was procured at the storehouse of the parties constructing the dam, and that it was buttoned up, or fastened all the way down to a point between plaintiff’s knees and his ankles. A coat produced at the trial by defendant as that worn by the plaintiff on this occasion (another bit of evidence that defendant must have had something to do with plaintiff when he was hurt) shows that the cogwheels took hold of the coat right at one of the bottom corners in front and gradually worked their way up the coat until they engaged plaintiff’s arm. Plaintiff’s testimony is that if defendant had provided a platform or covering over the scuttle hole he could have stood in a different position and oiled the sprocket wheel so that he would have been at least three feet from the sprocket wheel, whereas, oiling it as he did, under the conditions existing at the time of his injury, he was required to be not more than two feet from the
This court has in the case of Wilt v. Coughlin, 176 Mo. App. l. c. 281, 161 S. W. 888, approved the following rule deduced from the opinion in the case of Christy v. Hughes, 24 Mo. App. 275: “In the action for consequential damages resulting from the negligence of the defendant, it devolves on the plaintiff to show that there was such a connection between the negligent act and the injury as to bring it within the reasonable contemplation of the actor that such injury would naturally and probably result from such act, and such as ought to have been foreseen by the defendant as likely to flow from his act.”
Besides, the question of the. proximate cause of ■an injury is ordinarily one of fact for the jury as well as whether or not the injurious consequences that resulted are such as ought to have been foreseen by a reasonably prudent man. [Holman v. Souther Iron Co., supra.]
We therefore hold that the question of whether the failure of the defendant to provide a platfoim or covering over this scuttle hole to be used during the time its employees would be required to oil the sprocket wheel, as well as the question of whether defendant should have foreseen the occurrence by the exercise of ordinary care, are, under the facts of this case, questions for the jury. The jury has resolved such questions in favor of the plaintiff.
This being true, the question of assumption of risk goes out of this case under the recent decisions of the Supreme Court. [Strother v. Kansas City Milling Co., 169 S. W. 43; Patrum v. Railroad, 168 S. W. 622.]
While the plaintiff knew of the existing conditions and the environment at the time he was oiling this
The objection to the introduction of testimony with reference to how the pay checks were signed and what was written on them is not well taken. Defendant’s reply to the order of court requiring it to produce the contract and checks hereinbefore referred to shows that the checks were beyond the jurisdiction of the court if they, were in existence; hence it was not error to admit secondary evidence. [State v. Myer, 259 Mo. 306, 168 S. W. l. c. 720.]
It is not every conclusion that a witness testifies to that rises to the dignity of an invasion of the province of the jury, and to announce such a doctrine would invade the province of common sense. A witness may properly testify that a conductor was on a street car when she testified that she saw a man dressed in the uniform of a street car conductor exercising the functions on the car usually exercised by street car conductors. To hold that a witness is precluded from giving his conclusion on all matters, as defendant’s argument and insistence would lead us to do, would not permit, a witness to testify that the color of the boat in question was either black or white, as such answer in the last analysis must necessarily be a conclusion from what the witness has seen. This is all that need be said in answer to appellant’s contention that testimony was erroneously admitted to the effect that Maxson was in charge of the work.
Whether the second count, on which the case went to the jury, was a departure from the original 'cause of action filed by the plaintiff cannot be urged at this time because the defendant waived any such contention by answering to said count and proceeding to trial on the issues made by the pleadings. [Hatcher v. National Annuity Ass’n of Kansas City, 177 Mo. App. 278, 164 S. W. 188; Fuggle v. Hobbs, 42 Mo. 537; Scovill v. Glasner, 79 Mo. 449.]
As to defendant’s refused instructions:
Instruction numbered 1, being the peremptory instruction to find for the defendant, was properly overruled and refused for the reasons hereinbefore appearing.
Instructions numbered 2 and 4 were properly refused because they made plaintiff’s knowledge of defendant’s negligence a risk that he assumed.
There was no error in refusing defendant’s instructions numbered 3. and 5 for the reason that the question of contributory negligence was properly submitted in defendant’s instruction numbered 12 which was given.
It was not error to refuse defendant’s instruction numbered 6 because the identical question embodied
The plaintiff’s instruction given by the court correctly submitted tbe question of negligence on the facts disclosed by the evidence, and was within the allegations of the pleadings on the question of defendant’s duty to exercise ordinary care to furnish plaintiff a reasonably safe place'in which to work, and predicated a recovery on a finding that the failure to cover the pit or scuttle hole was a negligent act from which the injury was caused and one that might reasonably have been anticipated.
In conclusion, we take this opportunity of saying a few words with reference to the manner in which this case is brought before us. There is labeled on the cover of a large volume of printed matter the words "Appellant’s Abstract in Lieu of Pull Record.” On an examination of its contents we have found, ixxstead a copy of the full record—evidently prepared by the attorneys having the court stenographer transcribe his notes and then having the printer publish the same and put the cover on. This does not meet the requirements of our rules. We have been insisting no appellants bringing their cases here in accordance with the rule of the court but so far have done nothing other than to call their attention to a failure to do so; as yet, we have not dismissed an appeal or affirmed a judgment for a failure to comply with these requirements because we were apprehensive that attoxuxeys had not familiarized themselves with our rules and our determination that they be enforced in this particular. We again call attention to the fact that our rule as to the abstracting of testimony is one that this court will enforce and that the day of judgment for some litigant whose attorney, has been remiss in this duty is not far distant. '
The judgment is affirmed.
Concurrence Opinion
It is with much hesitation that I concur in affirming this judgment. I readily agree that no material error was committed in the trial of' this case unless the demurrer to the evidence should have been sustained for a failure to show any negligence of the defendant causing, or helping to cause, plaintiff’s unfortunate injury. If the failure to properly guard the cogwheels was negligence there would be no question as to defendant’s liability, but the plaintiff abandoned that ground of negligence and we must treat the case on the .theory that it was perfectly proper to leave the cogwheels open and in such a condition that a workman’s clothing was likely to be caught therein by the action of the wind or other cause in case he came too close to the same. This danger was an assumed risk. I grant that it was negligence to leave the scuttle hole in front of the cogwheels uncovered and bad plaintiff, in any. manner, slipped, or stumbled, or stepped in the scuttle hole and thereby been caught in the gearings this would have made defendant liable. But no such fact is claimed. It is necessary in order to create liability to show that the open scuttle hole was one of the causes of plaintiff’s coat being caught in these cogwheels. To my. mind, after reading all the evidence and studying the photographs showing the physical facts, there is no such causal connection shown. The jury has found that plaintiff could do this oiling with the scuttle hole uncovered with reasonable safety—that is, without going so near the cogwheels as to be in necessary danger. Otherwise he would be guilty of contributory negligence as he would be also if he went nearer the cogwheels' than was necessary in order to do this work, or wore clothing so loose as to have the same effect. As the wind was blowing strongly towards these cog
Plaintiff measured the open part of the scuttle hole and says that it was nineteen inches wide. It seems to me that the only effect of the open scuttle hole was to cause plaintiff to stand astride of it in oiling, with his feet that far apart. His right foot and leg were against the side of the boat as he leaned forward and to the right, holding to the upright piece, to reach the place of oiling just outside the side of the boat and on the same shaft as the upper cogwheel. Had the hole been covered he could have stood no different, except to move his left foot nearer the right one, or, perhaps, in front of it, making it nearer the cogwheels. As he did stand the cogswheels were almost directly in front of his right leg, being nine inches 'from the side of the boat. That leg would have been in the same position with the scuttle hole closed. The claim is that with the left leg twelve to fifteen inches nearer the right one, plaintiff could have stood farther from the cogwheels, by which is meant that the bottom of bis coat, which the-cogs caught and which came below the knee, would have been farther from the cogs. How, or why, this is so is not clear to me. Plaintiff says he does- not know in which hand he had the oil can and that he could reach the oiling place equally well with either. This negatives the hypotenuse demonstration and we know the human body is not rigid and the shoulders turn without moving the feet. ■ The fact that plaintiff’s right foot rested on a narrow and insecure base makes no difference, as it is not claimed that he slipped in any way. He says he stood two feet from, the cogwheels, facing the same, and we know that in leaning forward the bottom of his coat, especially with a strong wind blowing in that direction, would come nearer the cogwheels; but that is true whether the hole at his feet was covered or uncovered—that is, whether his feet were six inches
Moreover, the evidence shows that plaintiff was not at the fatal moment leaning forward in the act of oiling. He does not so claim. He says that he was standing astride the scuttle hole but does not know whether he -was in the aGt of oiling or not; and the only other witness observing him at the exact moment says “he was standing facing the cogs, just finished oiling up, just fixing to turn.” It is also worthy of note that plaintiff did not attribute his injury to the uncovered scuttle hole until he filed his second amended petition. Suppose his first contention, that the failure to guard the cogwheels was the negligence causing his injury, had prevailed and the scuttle hole had been covered and, notwithstanding this fact, the plaintiff had stood, as he did, with his feet nineteen inches apart instead of six to eight inches apart, would this have constituted contributory negligence on his part precluding a recovery!
This is the way the matter looks to me, but my brethren look at the facts in a different light and can see a connection between the uncovered scuttle hole and plaintiff’s injury. This leads me to conclude that reasonable men might differ and that the question was one for the jury.