*1 SUPREME OF MISSOURI. COURT ST. Receiver LUSK, W. PAUL KUHN JAMES & RAILROAD COM- LOUIS SAN FRANCISCO Appellant. PANY, One,
Division March 1920. Duty Does MACHINERY: to Guard When Statute 1.' DANGEROUS law, Apply. Independently if Not and common statute dangerous machinery guarded ordinary requires that be care work is directed to order to render in which the servant injuries safe, the servant the master liable for then is resulting from a failure to exercise such care. Ordinary incurs 2. -: —--: Care. In Missouri master ordinary dangerous machinery liability guard where for failure to safety requires guarded, and it to care for the his be servants duty although remains, requiring ma- that the statute guarded application chinery to to the situation. be has Assumption -: -: -: of Risks. The rule in Missouri 3. grows his that out that the servant assume a risk does not only negligence, plain, master’s but assumes however obvious peril remaining has master incident the service after care, ordinary care; and exercised danger, occupations great master all attended with uifusual readily required provide appliances and known all attainable accidents; prevention and where facts to science for the operation about had a machine demonstrate that the master danger required work, that he servant which expense guard apparent, strikingly trifling or cover at a maintained, which would have been around such machine could efficiency, have lessened its if no wise wholly danger servant would have been maintained to the guard. provide removed, the master Specific by Supported Evidence. defects in a 4. NEGLIGENCE: Not injury, plaintiff’s machine, charged petition to a cause of be evidence, should not not established substantial are plaintiff’s jury for as a basis the instructions submitted right to recover. Specifications. Recovery If the on -: -: Different 5. permitted either are the instructions to find for specifications negligence, the evidence two to one them judgment finding, support is insufficient verdict him aside retried. must be set and the cause — n -: Jury. Danger: testified Plaintiff Obvious Question 6. upon fully danger appreciated attendant that he knew cog-wheel, cleaning revolving but next thought upward over the axle he could reach fed n TEEM, Yol: Lusk. 'Kuhn v. being wipe grease sleeve his coat from the under side without doing danger cogs. Held, that, soof whether the drawn into the prudent great ordinarily man careful was so an *2 question jury. attempted
not have for the it was a Appeal from G. Thur- Barton Circuit Court. —lion. B. Judge
man, Reversed and remanded. appellant.
W. F. Mann, Evans and Todd Mann & (1) to At common law master is not guard parts his but could leave all of the machinery unguarded legal liability and incur on that no v. 404; account. Cole Lead 240 Mo. Czernicke Co., v. Manufacturing 212 Ehrlick, 386; Mo. Lore Mo. v. 160 Co., App. v. 608'; 621; Blair 103 v. Mb. Gleason Iieibel, respondent (2) Smith, 172 avail Mass. 50. The cannot re- in this action of the the statute .himself benefits dangerous garding guards machinery, Sec. to-wit, (a) petition R. 7828, S. 1909: Because the counts neither brings on the thereof, statute or the case within terms simply negligence appellant, <£in but counts on failing ordinary to furnish -to a. reasonably place safe failed work, to that defendant properly to exercise care to house shield ’ ’ allega- gearing to motor. There is said petition language tion in statute or other- placed gearing wise that the was so as to employed engaged persons in their to thereabout while possible that it duties, or to it so as prevent injury. (b) 1909, R. 7828. S. Because sec. respondent, petition clearly as his indicates, founded regard upon appellant action in this the failure of the' him furnish safe work, Respondent gearing. failed further house or shield upon testimony theory introduced his ob- over jection appellant drafting re- his instructions spondent solely liability relied the common law any theory under did not instruct statute. covered theory Respondent upon bound brought only tried his submitted but case toit SUPREME,
326 COURT OF MISSOURI.
Kuhn v. Lusk. jury. Begonia Railway, 588; v. 224 v. Mo. Brunswick Insurance 213 Co., 46;W. Hoff Transit v. Co,, 213.S. Bray Seligman, y. Mo. 470; 40; v. 75 Mo. Williams Right, 502; 206 Loban, 407; Mo. St. Louis v. 210' Mo. y. Railway, Brick Co. 72!7; Railroad, 213 Mo. v. Williams Lalapie (c) 233 Saddlery Mo. 676; Mo. Co., 193- 13. appellant Because the herein is the receiver of a railroad company provisions Cbap. and the R. 6, Art. S- 67, part, of wbicb said 7828 in- Section was not govern tended effect or undertaken railroads, if apply be so construed railroads then said sec- tion well as that article is has unconstitutional, as already been so declared this court. Rail- Williams v. (3) road, 666; Mo. Mo. Constitution, 4,Art. Sec. They Instructions 1 and number are number erroneous. grounds jury might submit two *3 which the question determining consider in of defendant’s liabil- ity. boxings There is ho in evidence that the record bearings and babbitt were old, loosened, defective and testimony they if there were that old, defective loosened or if the did wheels not mesh true each machinery other when in that said motion there so wabbling gearing was a lateral or movement bearing of the vibration frame of motor and any shafting, then there in is the record that no evidence things directly any plain- of these manner or caused caught get gear they tiff’s sleeve to or that contrib- any way injury. uted to his The mere that such al- fact leged gear condition of existed not did respondent entitle In to recover. order re- that should prove prove' cover, his evidence must or tend these that proximate injury. conditions cause of except alleged other words, of these existence de- caught fects his would not have been and he sleeve injury. Trigg have received v. Lumber Co., Mo. 187 Brewing Thompson Boerr v. 176 234; Mo. 556; v. Assn.* Stepp 140 135; 233; Mo. v. Railroad, Railroad, 85 Mo. Stanley Henry Mo. Railroad, Railroad, v. v. 624; Elevator 293; 76 Mo. Jackson v. Co., 209 Mo. Go- 506; 1919. TERM, 32? Vol. Kukn v. Lusk. Mfg. Railroad, McGee
ransson v. 16 Mo. 307; Co., 543. Mo. respondent. &
Sizer Gardner for re- onr (1) statute not bottomed on This action is dangerous machinery quiring 7828. be housed. Sec. statutory statute in Since enactment machinery upon duty all manufacturer house exists negli- by to do so is statute, covered a failure per apply gence se. has not to This been held statute say. rightly do not "Wil- not, whether so we railroads; such liams v. 233 Mo. But absence Railroad, duty by servant, exists master statute, towards his designated his and this what common-law is has only duty. machinery men- The covers is statute such by common it, tioned covers all while the law by appliance as it other the same covers furnished Machinery appliance the master. an master, exception ap- finds no for the same rule law, at common applies plies appliances. to tools and other change The statements our loose courts not do modify law common its strictness in the least, completeness today, common law obtains all its not- expression Avithstanding such our courts. We do duty imposed such contend there as is only duty but law, common machinery statute use care. If requires malee housed order *4 as place, then the master is safe,
it, he duty it at law as stat- house common bound to a to house under such circumstances ute failure and ; culpable equally negligence a violation of the stat- duty 386. This Ehrlick, 212 Czernicke v. ute. M'o. law, law is horn-book at common is elemen-
master
tary.
Letanovsky
App.
Co., 157 Mo.
120; Quinn
v. Shoe
Laundry
1100;
155
17
Co.,
500,
Cal.
Ann. Cas.
Electric
v.
Gray,
511;
140
Buchel
Co.,
Lumber
Cal.
v.
v.
Skelton
Kennedy,
421;
141;
v.
Carlin
94 Minn.
Greenan
115 Cal.
Sup^
Sup.
Cargill
Eggeling,
v.
Ct.
Towell
253;
30 Pa.
v.
328
SUPREME COURT OF MISSOURI.
Lusk;
v.
Pa.
185iPá.
269; Bartholomew v.
21
Co.,
Kemmerer,
St.
Flynn
A.
v. Prince
277;
St.
Mass.
17 L. R.
Co.,
224,
198
(N. S.)
Lithographic
Y.-413,
568; Kirwan v.
197 N.
Co.,
(N. S.)
27 L. R. A.
972; Wilson v.
Linen
Williamantic
Rep. 653;
50
Bannister
Conn.
74 Am.
Hnstis
Co.,
533,
v.
279';
v.
465,
63 N. L.
Co.,
J.
affirmed 64 N. J. L.
Pierce
Mfg.
25
Co.
Co.,
512;
Conterville
v._
R. I.
Galveston Oil
Mfg.
Thompson,'76
Pepperell
235;
Tex.
Podvinv.
Rep.
Rooney
104
129 Am.
Co.,
561,
411;
Me.
v. Sewell
St.
Connelly
Co.,
Hamilton
153;
161 Mass.
v.
Woolen
Co.,
3¡
Simpson,
163 Mass.
541;
v.
156;
Wash.
Lewis
Swoboda
Mills,
Capitol City
Ward,
v.
40
v.
420;
Mich.
Strickland
(N1.S.)
16,
74 S.
7 L. R. A.
Brooks He Soto
C.
Oil
426;
v.
100
Co.,
Miss.
Ann. Cas.'1914A.
849,-
Homestake
656;
Mining
App.
Co.
Fullerton,
923',
v.
Fed.
S'.
69!
36'U.
16 C. A.
Rabe
545;
C.
v.
Co.,
Consolidated lee
91 Fed.
Ky.
457; Paducah Box Co. Parker,
v.
143
43 L. R«
607;
S.)
Dettring
(N.
Levy,
Thomp-
A.
179;
v.
4;
114
273Md.
Negligence,
son on
sec.
R.
L.
181
4017;
591, sec.
94;
C.
p.
Duntley v. Inman,
Kuhn He motor. a and of tbe frame vibration sufficiency thereby tacitly the evidence concedes claims defendant In other words, to submit these facts. in required when, jury all these facts were find that the proof upon defects plaintiff recover was entitled fact, wobbling, gears and of the wheels vibration practically concedes then, of the frame. Defendant necessary says a grounds were he now all the which sup- recovery, instruction contained this ported complaint by but he makes evidence; nec- proving than facts more assumed burden recovery. essary ato personal in- an action
BADLAND, C . This by alleged, caused, as it of defen- judgment $10,000, dant. recovered Plaintiff appeals. defendant employed injury,- plaintiff At the time of was ‘‘handy defendant man” laborer one as a shops machine Louis & San Francisco St. Company,
Bailroad locat- defendant is receiver, which City Springfield. ed an incident to such As wipe to clean and employment was grease eléctric motor of a certain off the dust power wms shafting through transmitted which large punching motor machine. This a from it to supported completely housing and a enclosed to the concrete floor on metal frame bolted projecting from It south, faced it rested. direction there was center of in that shaft and so shaft, did. motor On revolved cogwheel that it there it, attached revolved with was a cogwheel inches diameter. This at a six- small dis- eight of about from meshed tance inches cover larger twenty-six inches in one, diameter, immediately punching a shaft ma- connected with chine, thus and. means of these respective power and their shafts was communicated accompanying from the motor to the machine. The photograph cut is from a motor and intro- SUPREME COURT OF MISSOURI. y. Lusk. *6 TERM, Yol. Lusk. great deal was below. A on trial
duced evidence boxing to the locations said the witnesses as are the on which on shafts axles ,two specifications cogwheels. oneAs alleged condition these has its defective basis respect bearings, to their the evidence important, yet as when several locations is the witnesses testifying subject photographs before them ‘‘ ’’ example, boxing, merely There said, bearing (indicating),” the record in is a without “Here way disclosing- the witnesses indicated, what testimony obscure, such whole as to their locations conveys meaning However, and some of it all. *7 which the the is photograph axle shows the support the its south from cogwheel extends small through It of the motor. the work frame wheel north north end at the appears to enclosed within be projects through motor, and between the also it where cogwheel the and between wheel the and frame the and evidently It has two support end. south at the its sup- bearings it and one where is frame .the by ported The shaft at end. revolved south parallel cogwheel large the one on is with the, latter, one,, sixteen west small about inches bearings sup- similarly same on the boxed has its and. ports. boxing- shafts, it The of these said, lined with The bottom of babbitt. were large cogwheel inches and two was about three top from floor. shafts about sixteen inches The housing of the motor seems been about the same have large cogwheel, top from distance the floor as the two about half feet. a When motor and operation cogwheel approximate- the small made ly large pro- a revolutions minute and. the one in portion. cogs The were two a fourth wide inches upward. and revolved The motor and en- by closed shields or other barriers on north, west they approached sides, south so that could be from only. employees the east side None of the of the de- any had them, fendant occasion or about near OF MISSOURI. SUPREME COURT _^ inspect, except re- them to whose duties those pair, machine was clean the time the oil them. At originally housing or a cover that so installed there was im- have been both it would enclosed possible any working on or one about have cogs. cover contact was fur- with the come This part nished as a of the machine the manufacturer and for time was so defendant. a maintained practical way op- any It did not in with interfere notwithstanding, machine; eration of the without apparent reason, been had removed and use its prior length discontinued considerable of time plaintiff’s injury. injury plaintiff
At years time forty was of his age possession of all his He faculties. general utility shops man in the defendant’s helped where machinists, looked after the belts machinery. cleaned the motors and He had been engaged so general way during preceding nine consequently entirely 3rears the with familiar operations of shafts, belts and motors and the dangers cleaning incident thereto. He question years. motor in for about two The motor proper blowing was cleaned the dust and dirt out compressed conveyed through air nozzle applied a hose openings in the motor cover. *8 grease The dust and that accumulated on the motor' wiped boxing and around shafts off frame was piece with of It seems that a waste. connection cups, g’rease grease with one of the accumulate boxing lower side of shaft of around the cogwheel the small and the motor. between it This grease gummy would harden and become so that it required pressure considerable the hand to it remove with the waste. attempting It was while to clean the place plaintiff doing at this was hurt. In so got squatting position stooping he into at the north- ring east of the frame, corner motor took hold of the fop right at the motor cover of the his with hand, left, piece with his which he held a he waste, TERM, Yol. small the shaft under and back over
readied wipe began grease off cogwheel to his boxing, when sleeve bottom side up drawn cog*s was jacket forearm his fed into the pulp-. ground through into out thrown them and once to motor clean Plaintiff had he was months, before eleven week. Piior to about running. At it was he never cleaned hurt had while charge put he was new foreman time a testimony, plaintiff, according latter’s to the directed running not to clean it was so while to men, took interfere work as it about' with the stop fifteen after come to a minutes the machine to power was shut off. the motor Thereafter when punching was to cleaned, be if the machine seemed (cid:127) kept plaintiff although running, to constantly idle, requested operator power, shut to off always engaged, latter did; the machine if proceeded to clean the motor while and the were in motion. He it while motion cleaned ifiye four or before times he was The hurt. foreman emphatically plaintiff, denied that to he had directed clean .running. the motor while it was Other facts legal questions necessary understanding an to in connection with their con- will be stated involved sideration. respect allegations petition The of the negligence charged follows: are injuries “Plaintiff aforesaid were states directly caused defendants, agents, employees: their servants care furnish failing ordinarv “In in that work, de- safe properly failed to exercise fendants gearing’ motor. said house or shield negligently carelessly ordering* “In wipe motor while the clean said and. same operation, permitting plaintiff clean instead of stopped. same motor was after said *9 MISSOURI. OF SUPREME COURT Kulm ordinary keep to care failing “In to exercise repair, same so that reasonably machinery in safe said in and dangerous to work not be would bear- and babbitt in that the motor; about said loosened,' and ings and were defective, old, larger gear with not true did mesh wheel small machinery motion, gear in wheel, so when was the lateral movement of vibration bearings shaft- on the the ing frame plaintiff’s into arm feed caused the sleeve on caught and become thereof. failing1; ordinary
“In maintain to exercise care keep machinery condition; in said safe abandoning hood and shield previously gearing furnished fitted said protect employees working in and about said machinery.. further
“Plaintiff states that reason negligence, sep- different acting acts aforesaid, arately conjointly, plaintiff injured or as afore- damage twenty-five said, to his sum of thousand dollars.” general The answer is a plea and a denial contrib-
utory negligence. plaintiff’s request At jury court instructed the negligence reference to. defendant’s as follows: “The court determining instructs whether or not the agents employees defendant, his negligent you the first instruction, only should following, consider grounds alleged by plaintiff petition, in to-wit: “1st. failing to exercise furnish care to plaintiff a reasonably safe work, that defend- properly ant failed house gearing shield cogwheels to said motor. failing “2nd. In keep machinery said repair, reasonable safe in that the boxings and babbitt were old and defective and loosened, and the wheels mesh true with each so other, that when said was in motion there *10 . TERM, Yol.
Kuhn Lusk. gears and wabbling of the or movement a lateral bearing the the the motor vibration of frame of or yon both shafting; either one find that and if . . . separately con- or acting negligence, snch acts of if plain- plaintiff jointly, injury directly to caused that own his care for exercise tiff was the plaintiff under your the safety, will be then verdict for preceding instruction.M the fully instructed the court the defendant For con- jury them, if which, as to the facts found contributory negligence. plaintiff the close At vict again plaintiff’s evi- the close of all case and requested ver- court to direct a dence, the defendant favor. dict in his assigns
Appellant demur- refusal of his as error the plaintiff’s principal giving of instruction rers and the specification grounds: (1) first om on That jury the case under which was sent to did not negligence; (2) law constitute actionable that the evi- to dence was not sufficient take case to the specification; (3) negli- plaintiff’s that the second gence proximate injury was the his as a cause matter of law. Under view we entertain as control- questions ling necessary will be case, points consider other are raised. respondent Appellant agree
I. seem that, alleged part acts omission on defend- liability upon for ant seeks fasten company, him were those of receiver of railroad .a requiring dangerous machinery the statute application. guarded no has t16 But whether MacMnef be so or without the statute is infiu- not, pleading bring (cid:127)enee did not because the question, terms. The his case within!its naked therefore, independently whether, can statute, predicated guard cog- of defendant’s failure to Appellant wheels. that at insists common law the mas- liability ter incurs failure' respondent machinery; contrary on the asserts if that, SUPREME MISSOURI. COURT OF guarded requires to he such servant order to render the is direct- which the is liable the master ed to then safe, work resulting injuries from a failure the servant Recurring briefly care. to the facts, such „ gearing appears fenced the motor so defendant’s) except employees, about that none of inspected, repaired, them, oiled those who cleaned approach cog- to, occasion or be about could, performance wheels, while of their work. If *11 inspection, repairing, oiling cleaning were done running, ques- the not when machine was then without necessity cogwheels. guarding tion there nowas the plaintiff’s entirely But case rests on his assertion, supported be by must assumed as-true the 'Slid- because ing jury, of the to clean the shafting operation. the while machine was doing necessary his work under that condition, became during plaintiff the course thereof for to extend his hand space eight and arm down into the of inches between wipe grease and the motor and the hardened off of cog- the under-side of shaft boxed the small in which there was more or wheel, less vibration, im- proximity cogs mediate feeding to where the wheel were large thosé of
info speeding one While at the rate of 1200 revolutions minute. The extent of danger by encountered requires doing in so no elaboration. housing Defendant had a for which had by furnished with machine the manu- facturer. Its way use, while interfering in no with the practical operation impossible made it machine, working one around or about caught be injured by or them. On state of the facts can it be said as a duty matter of that the law owed defendant a exercise to furnish require safe in which to did work not gears'? the former to maintain the cover It around requiring dangerous that statutes is sometimes assumed regard- guarded machinery because, were enacted to be attending thereof dircumstan- situation of the less TERM, Yol.
' duty guard under no at common law master ces, grows assumption, believed, machinery. it is This such purpose scope plain the out of efforts to make of the a consideration than from statutes rather the legal principles applicable master relation particu- specify usually Such statutes servant. guarded, parts larity to be machines the machines they re- are under which as well as the circumstances exposition im- quired guarded, their to be and in pression conveyed not that as to is sometimes there is no stat- statute, within because terms utory duty duty to it, respect absent. Of course no such care in that is also justified prem- 'inference is intended would be given negligent ises. manifest that if a act It is passage guarding before statute, of a. its character respect changed least comprehended enactment such statute, whether In; within its terms or if the statute not. the case bar, applicable, question on the facts disclosed, entirely defendant’s would be foreclosed liability absolutely fixed, but it does not follow ap- a matter of law, that, statute without because the *12 negligent. plication, the defendant not The test was guard which determines whether defendant’s failure Way the constituted in passage ap- affected the of and is to statute be plied apart wholly any from statute, consideration of the and that is, test was under failure, shown, the facts such consistent ordinary with the of care? exercise Consid- light ered in the such of test the situation discloses operation that defendant in had machine about which danger required that encounter- work, he thereby by plaintiff speakingly that at apparent, ed been, expense guard trifling could have mlaintained way any lessened have would that machine such on operation,' defendant and that efficiency of its danger would guard the such maintained may under an ex- wholly be that It removed. have Mo. 22—281 OF' MISSOURI. SUPREME COURT
Kulin “ordinary duty of panding the standard social view elusive habitually rather that exercised care” that is prudent has ordinarily man, person, careful it certain- has or not somewhat, advanced but whether would minds ly reasonable cannot said that all mien be opinion of such care now exercise concur require machine in' defendant did not danger though question, it was of contact with even perfectly obvious. always recog
While courts of have this State right adopt such methods nized of the master to appliances prosecution of his to select such consistently yet may industry they fit, have see right exercised within the held that that must limits be injury a servant has received care. Where appliance which, account of the character with place required or the he was which, work, do his respect liability master thereto has been invariably application determined rule him to care in fur nishing appliance. such McNair, Curtis 173 Mo. Supreme 270, 283, we followed lead of the Court laying1 legal of the United States down “as a principle occupations in all which are attended great danger with and unusual there must used all be appliances readily attainable known to science for the prevention neglect provide of accidents, and that the readily such appliances attainable regarded will be proof culpable negligence.” For us to that, duty now hold aside from the statute, master is under no guard fence or machinery, regardless of the situation or the. circumstances, for us put principles to tofore aside fundamental that have here guided dealing cognate us questions arbitrarily exception an create jus could not be ground tified on right or reason.
Appellant’s contention that at common law there duty is no dangerous ap- finds parent support in the decisions of the courts of those jurisdictions give that effect to a doctrine of the as- 339 TERM, Vol. Luslc. v. this State. entertained sumption is not risk that jurisdictions in such that the rule obtains Under growing out unguarded like that' peril machine, an. defect or condition other conceivable of almost that open obvious, so appliance, if knowledge there constructive actual or the servant has as This view him. of, a risk assumed referred sumption the decisions is the basis of risk 153; Cordage Mass. Co., 161 [Rooney to. v. Sewall courts 561.] Mfg. The same Co., 104 Me. Podvin v. liable master hold the those decisions rendered negligent injuries fence a failure to by a caused assumption of is no where there machine danger example, is unknown where risk, as [Flynn v. hidden latent. the servant because Co., Wilson v. Linen Co., etc. 198 Mass. Prince, 224; Mich. 401; Co., 50 433; McDonald v. Steel 140 Conn. Ithe it is Turner Lumber 119 N. Co., 387.] v. C. 'As exception, is no rule to which State, there grows never servant a risk that out assumes negligence, plain however or obvious—that master’s peril risk does is the incident assume remaining service ordi after master has exercised .(Williams 53), nary Pryor, S. W. apparent that cases from other cited States like those sustaining appellant’s position, above, instead are persuasive authority holding. contrary for Ehrlick,
Cole v. Lead Co., 240 Mo. Czernicke v. 397; Mfg. 386, 12 Mo. Co., Lore v. 160 Mo. 2 involving guarding cases the construction of our expressions may them statute. be found that lend appellant’s countenance to contention, but, ex such pressions unnecessary decisions of questions they then before the regarded court, cannot be having binding precedent. force Bair v. App. Heibel, Mo. 621, was a case where injured by had been coming into cogwheels. contact with petition The brought facts and the the case within the statute, but avoid a reversal on account of erroneous appears instructions, appeal en- *14 MISSOURI. OF 340 SUPREME COURT y. Lusk. Kuhn position and hold the defendant deavored shift liability-. instructions, however, on a common-law His theory. equally faulty on the under that facts, (without opinion In the- the court said of the course expressly deciding1, necessary not because it was to do so): “It seems there is the common rule -of law .no guard requiring' dangerous-machinery fenced to be Letanovsky ed.” But court later case same App. v. Shoe Co., Mo. without 120, 157 reference say the earlier one,' held that it a negligent whether provide failing the defendant was guard splitting for a machine in a fac shoe tory. respect And we so with, hold the case at bar to the defendant’s failure maintain a or cover on the plaintiff’s injury. which caused [18 R. C. L. sec. 594, 94; v. Brooks Oil Co., Miss. Ann. Dettering Cas. 1914A. Levy, (Md.) 656; v. 79 Atl. 476; Westman (Ore.) v. Co., Lumber 91 Pac. Pratt 478; ville Cotton McKinney, Mills (Ala.) 498. 59 So. respect alleged negligent II. to the failure re- pair, petition charges boxing that, because bearings babbitt old, defective and loose, and the gear wheels did mesh true with each other, there gears awas lateral movement of the and a vibration the motor bearings frame and the the shaft- ^n8') and that it was this lateral movement BabSfts.lld and this vibration boxing he was wiping at the time injury plain- of his that caused tiff’s sleeve cog’s. feed appellant’s into the It con- - tention that the evidence fails to show either that boxing and babbitt loose, were old, defective or or that lateral a- movement and vibration plaintiff’s injury. of the shaft or caused set To phase out extenso the evidence relative to this unduly lengthen opinion. case would The conditions may briefly The summarized as follows: be! shown together mo- lateral axle, had a its cog wheel, small one-thirty-secondth inch; this motion was of an tion TEEM, OCTOBEE Yol.
necessarily operation incident to cog- large The rim of conld not have avoided. slightly rotation axis wheel was inclined toward the of its appear- so that when the wheel was in motion wabbling. axle not loose on The ance wheel being little too play and had no bore there, but the tighten large it, key driven for the axle had been *15 rim to the that dur- and this tilted the out of extent line projected a side ing the of revolution to either course one-eighth had if an inch more than it would done have right plumb angles with the axle. it been or set at one-thirty-secondeth of of To the extent the an' inch slight and lateral motion of the small wheel the of large mesh true, wabble of the the did not one, by worn, failure to mesh not caused1 but this true was bearings, any re- defective or spect did not loose and it operation gears. of It lessen efficient appear any they lateral do'es not other move- running ment. there When was was machine at frame, all a motor times vibration shafting. pronounced and This was more when the work. the shear plate come machine at When would first was operation the metal contact with into punching grinding a a hole there would be noise it, speed gears, slowing the instant, and for their cogwheel pull tendency and and a of the small out large away from the one. At such machine times quivered.” was This action, however, “chattered and did indicate that the not machine usual plaintiff’s repair. a machin- witnesses, out of One of was light expressed opinion that was too ist, any the constant it was used. event, work for which boxing frame itself caused the vibration attention from to time constant work loose time necessary tight. keep was also them It linings. A babbitt intervals to renew the indefinite reading however painstaking the record, careful and time that at the substantial evidence fails to disclose boxing injury, frame or the motor plaintiff’s either that the babbitt loose, OF MISSOURI. SUPREME COURT Teaming Lueking
Ballman v. Co. sufficient, not loose. The evidence was worn, defective or jury the ease to the issue to take therefore, repair. negligent failure to the defendant’s fully ap- he knew III. The testified that upon hoxing preciated danger cleaning attendant g-ears cogwheels, revolving that as next to but upward thought he fed reach over could wipe grease axle and from under side Danger? being caught. without his sleeve Whether the danger doing great ordinarily of so was so that an careful prudent attempted man have we it, was, question jury. think, for the permitted IV. As the under the instruc- specifications tions to find for on either of two _ negligence, and as to one the . evidence support finding,
was insufficient to judgment will have to reversed and the cause remand- ed for another trial. is so It ordered. Small, Brown and *16 CO., concur. foregoing opinion
PER CURIAM:—The of Ragland-, opinion adopted C., of the court. All judges concur.
WALTON H. BALLMAN, R. BALLMAN, His Next Friend, v. H. A. LUEKING TEAMING COM- Appellant. PANY, One,
Division March Injury 1. NEGLIGENCE: 'Stopping Automobile to Traveler: Car: Knowledge of Peril. Where there is substantial evidence stopped feet, automobile could truck have been within a few night skating was clear and driver could have seen roadway streets, the intersection of two traveled three away, speed blocks driver neither slackened his nor