145 Mo. 316 | Mo. | 1898
This suit was begun by plaintiff to recover for personal injuries which he alleges was caused by the defendant’s negligently instructing and directing that he use and operate an unsafe appliance called a lumber hoister.
The answer of defendant in addition to a general denial charged plaintiff with contributory negligence in the manner of handling the machinery, and further charged, that, if the machine was defective in any particular as alleged, plaintiff knew thereof prior to and at the time he received the injury complained of and assumed the risk of working with the machine in its then condition.
At the trial of the case in the circuit court plaintiff had judgment for $2,500, and defendant prosecuted its appeal to the St. Louis Court of Appeals, where the judgment of the circuit court, in an opinion written by Judge Bond and concurred in by Judge Bland of that court, was affirmed, Judge Biggs dissenting and deeming the opinion in conflict with the following cases: Helfenstein v. Medart, 136 Mo. 595; Fugler v. Bothe, 117 Mo. 475; Bradley v. Railroad, 138 Mo. 293; Lucey v. Hannibal Oil Co., 129 Mo. 32; Devitt v. Railroad, 50 Mo. 302; Ellingson v. Railroad, 60 Mo. App. 679;
As we read the record herein, there appears to us no occasion to discuss this case upon the lines pursued by the court of appeals or of considering whether the opinion as written and approved by the majority of that court is opposed to the doctrine as announced in the Helfenstein and other cases cited, according to the view of the dissenting judge therein. There was no evidence in the case to justify its being submitted to the jury upon any theory.
The defect in the appliance that plaintiff was given to use, as charged in his petition, was that a shoe had been removed from the base of the carriage of the hoister, and it is alleged that in consequence thereof a board that was being hoisted by plaintiff fell from the machine and struck him upon the foot. To have maintained plaintiff’s action it was necessary for him to have shown, either, directly, that the board that fell upon his foot slipped or fell out of the machine, because of the absence of the shoe, or a state of facts so connected with and related to each other must have been shown, that the conclusion therefore might reasonably and fairly be made that such was the cause of the fall of the board. The mere proof of the absence of some particular part of a machine that is being used, and the proof that an injury has occurred to a person using the machine in that condition, does not fill the measure of proof of the charge that the injury was occasioned on account of the absence of the detached part of the machine.
That the board did fall from the trough or plane of the machine in which it was placed because of the absence of the shoe (with its projecting lip,' as it is termed) is possible; that it might have fallen from one of a half dozen other causes, that could be suggested,
1 The absence of the shoe on the hoister, was a mere condition, and not the cause of the accident. No casual connection was proved between the defect complained of and the injury sustained. To prove that an injury has been occasioned by a falling board from a machine, like the one in controversy, wanting in one of its original attachments, and then show that the board could not have fallen after a given way from the machine had the attachment been used, is not showing what force, power or motion caused the board to fall in that instance or that its resistance would have been overcome had the absent appliance been used.
According to the testimony, the iron strap or bar, upon which the board that fell and injured the plaintiff was resting, was ample and did prevent the board from slipping directly down the incline upon which it was placed preparatory to being hoisted, as it was shown to have been neither broken, bent or twisted to one side after the board had fallen. But, says the plaintiff, had the wooden shoe (with its projecting flange
Nor would the mere use of a machine confessedly out of repair and with one or more of its original attachments absent from the machine at the time, relieve a plaintiff, who as an employee might have been injured while working about the defective machine, from the burden of proving specifically the allegations of his petition after the manner the injury is charged to have been - occasioned, or facts and circumstances from which the jury as triers of the facts could fairly and reasonably conclude the existence of the averments made. No such facts in this case have been shown and the trial court should have so instructed the jury. The judgment of the circuit court is reversed.