169 Mo. App. 463 | Mo. Ct. App. | 1913
Plaintiff’s action is for bodily injuries received by him while engaged in defendant’s service. He obtained a verdict in the trial court for tMrty-seven hundred and fifty dollars. A remittitur of seven hundred and fifty was dequired by the trial court and final judgment was rendered for three thousand.
Defendant operates a brewery, with the usual machinery for such institutions. This case concerns the starting and stopping of the engine- and its effect upon a large fly wheel. The work being done at the time of the accident was repacking the ice machine. It became necessary to turn the fly wheel, which was enclosed in a railing three feet high and which was near sixteen feet in diameter, and to- which a lever was attached. After it was moved and while plaintiff was standing-within three or four feet, throwing the belt on a “little oil pump on the side,” which was used for oiling the plunger rod, the foreman, who stood at the throttle nearby, started the engine. The lever was down and as the fly wheel began to move the lever made a “clicking” noise. It was shown that when the engine is stopped the fly wheel will reverse itself and
To recaputulate, the situation was this: After everything was in readiness to start the engine the foreman went to the trottle, plaintiff being at other work, and started the engine in the usual way. A harmless noise was made and plaintiff, without an order to do
But plaintiff’s theory is that the foreman saw him go into it, and saw that he was endeavoring to throw up the lever, and that therefore he should not have stopped the engine. A consideration however arises here which plaintiff excludes from his theory. When the foreman started the engine and heard the noise, unlike plaintiff he did not know what caused it. He thought “something had gotten inside” some part of the machinery and, as he expressed it, “it kind of scared” him and he- instantly reversed the throttle. Plaintiff concedes his fright and attempts to bolster the case by attributing the foreman’s excitement to knowledge of the- lever being down and plaintiff’s effort to throw it up. But the foreman was alarmed by the noise in fear of something that might work havoc with all concerned, and what could be more natural than that he should quickly stop the engine? Ought he to be charged with a neglect of duty to plaintiff in that moment of time which covered the incident? Plaintiff had not been ordered to do what he did; both he and the foreman doubtless thought they were doing a good service, but why should the foreman be selected for blame? The truth is, the occurrence was an unfortunate accident the primary cause of which must be attributed to plaintiff himself. [Glover v. Bolt & Nut Co., 153 Mo. 327, 341.]
Our views find apt illustration in two cases recently in this court. [Mathews v. Met. St. Ry., 156
It appears to us that this judgment is without legal support, and that it would be an injustice to allow it to stand- It is accordingly reversed.