227 Mo. 347 | Mo. | 1910
This is an appeal from a judgment of the circuit court of the city of St. Louis in favor of the defendant, in a • suit for damages for personal injuries.
At the time he received his injuries, plaintiff was in the employ of the defendant and was operating a machine known as a shaping machine, used for working over old rubber stock or the remains of rubber sheets out of which rubber shoe heels had been stamped. The sheet of rubber was first warmed up by passing it through a machine with heated rollers, and after being thus warmed and softened it was passed through the shaping machine. The warming machine and the shaping machine were substantially similar, the difference being that in the warming machine the rollers were heated. The machines consisted of two horizontal metal rollers, about three and one-half or four feet long and two feet in diameter, which were caused to roll towards each other, the space between
On the afternoon of February 13, 1905, the plaintiff was passing a sheet of rubber, weighing about twenty pounds, between the rollers of his shaping machine. He had .passed it through the machine once, and had reached down with his right hand under the machine and taken hold of the sheet as it came through, and had pulled it up and around the roller next to him. Then, with his right hand holding the top end of the
Defendant’s foreman testified that the emergency brake was tested about every two weeks, and that it was not tested for “fourteen days or three weeks before it broke.” The plaintiff testified that as long as he had been working there he had never seen the foreman test the brake. About three days after the injury, and before any repair or change had been made in the electrical lock controlling the clutch, the foreman was shown it by the engineer, who had taken it down. He testified that there was a part of the electrical lock broken, which break effectually prevented the lock from operating, and prevented any current from passing through it.
The defendant offered no evidence, but at the close of plaintiff’s case- asked for an instruction in the nature
Under the instructions of the 'court, the jury returned a verdict in favor of the defendant, and judgment was entered accordingly. Plaintiff duly filed! his motion for a new trial, which was overruled, whereupon he appealed to this court.
Plaintiff contends that the judgment should be reversed and the cause remanded for new trial bv reason of error in the giving of certain instructions. Instructions numbered 1 and 6 are particularly assailed. The former read's as follows:
“The court instructs the jury that if they believe from the evidence that plaintiff received the injuries testified to by him, and that at the time "he received said injuries he was in the employ of defendant, and that in the performance of his duties as such employee he was then engaged in feeding a mass of soft rubber into and between two rollers revolving towards each other, and that said rollers were caused to so operate by means of a suitable arrangement of cog wheels working into a cog wheel upon a line shaft, which in turn was caused to operate by a clutch upon the main shaft of the engine, and that near said rollers and for the use of the person feeding said rubber through said rollers the defendant had placed a horizontal brake lever, which was part of an emergency brake consisting of said lever and an electric battery, wires, electric lock and a mechanical arrangement of springs, levers and weight, and that when said horizontal lever was pulled down it would, if all the said parts of said emergency brake were in good repair, cause said clutch to open and thereby cause said rollers to cease revolving, and if the jury further believe from the evidence that plaintiff while in the performance of his said duties got the fingers of his left hand caught between said rollers, and thereupon, and before plaintiff received any injury thereby, immediately pulled down said horizontal*356 brake lever, and tbat said emergency brake was ont of repair in tbat one of tbe parts of said electric lock was broken, and tbat because of tbat fact tbe pulling down of said lever by plaintiff failed to cause said rollers to cease revolving, and tbat because of tbat fact, if you find it to be a fact, plaintiff’s left arm was di-awn into and between said rollers, and so badly crushed that plaintiff was compelled to, and did, have it amputated, and if the jury further believe from the evidence that defendant by the exercise of ordinary care would have known of such broken and out-of-repair condition of said emergency brake and electric lock, and that plaintiff at the time he received said injuries was exercising ordinary care in the performance of his duties, and for his own safety, then the jury will find in fav.or of the plaintiff.”
This instruction, excepting as to the words in italics, which were inserted by the court of its own motion, was asked by the plaintiff, and to the action of the court in modifying the instruction, and giving it to the jury as thus modified, the plaintiff excepted at the time and saved his exception.
The sixth instruction, complained of, is as follows:
“The court instructs the jury that plaintiff, by continuing in the employ of defendant and doing the work he was doing, assumed the risk of getting his fingers caught in between the rollers of the machine at which he was working; if therefore, you find from the evidence that plaintiff sustained any injury by reason of so getting Ms fingers caught, and that he would have so sustained injury even if the safety brake had worked perfectly, then plaintiff is not entitled to recover, even though you may further find from the evidence that the injury he received was aggravated by reason of the fact that the safety brake did not stop the rollers as quickly as it was intended to do. ’ ’
These two instructions, when read together and in connection with each other, in effect told the jury that
Before considering the proposition whether the plaintiff was entitled to recover under the circumstances as stated, we shall first turn our attention to said instruction number 6, which is, we think, objectionable for more than one reason, and which almost amounts to a peremptory instruction to find for the defendant, as under it we do not see how the jury could return a verdict for the plaintiff.
In the first place, there is no evidence that the plaintiff did in fact sustain any injury before he used the emergency brake which was supposed to stop the machinery. The testimony simply is that plaintiff had his fingers caught between the rollers, but there is not a particle of evidence that his fingers were thereby crushed or injured, or that he received any injury of any kind, before he pulled idown on the emergency bar or lever. The defendant’s foreman testified that there was an inch and a half of space between the rollers, which was of course sufficient to allow the fingers of any ordinary man to go through without danger of injury to his fingers. However, at the time plaintiff’s fingers were caught, he was pushing a sheet of rubber, in a folded condition, between the rollers, so that his fingers were pressed between the rubber, which was in turn, and at the same time, pressed by and between the rollers. This rubber, as the testimony shows, was soft, and there is no testimony, expert or otherwise, to show whether, if only his fingers had been caught, plaintiff would have sustained any injury. Perhaps
While admitting that plaintiff assumed' the risk of getting his fingers caught between the rollers of the machine about which he was working, and the ordinary risks incidental to his employment, it cannot be said that he assumed the risk attendant upon the failure of his safety brake to operate, and which was placed there to diminish his risk. The defendant having set up this safety appliance for the purpose of diminishing risk, and the fact being so known to the plaintiff, there was an implied obligation on the defendant not to aggravate the plaintiff’s risk by omission to keep the appliance in condition to operate and do what it was intended and expected to do. By printed notice attached to the brake bar the plaintiff was informed' that by
The theory, we understand, upon which the court gave instruction numbered 6 and instruction numbered 1, as modified, to the jury, was that there could be no apportionment of the damages; that is to say, if the plaintiff got his hand into the machinery and suffered an injury by so doing, through his own negligence, and if the injury was increased by reason of the defect in the device for stopping the machinery, there could be no apportionment of the damages, such defect in the safety device not having caused the injury in the first place. The law is that in cases where a plaintiff' sustains damages from separate and independent sources, it is the duty of the triers of the facts, although the injuries may be concurrent in point of time, to separate, as best they can from the evidence before them, the amount of damages caused by the defendant’s act or negligence; and the difficulty of determining the amount of damages caused by the defendant’s negligence, or of separating it from the damage caused by
In Jenkins v. Pennsylvania Railroad Co., 67 N. J. Law, 331, it is held that “in an action of tort, where it is impossible to distinguish between the damage arising from the actionable injuries and the damage which has another origin, the jury should be left to make, from the evidence, the best estimate in their power, and award! compensatory, damages for the actionable injury.”
In Gilbert v. Kennedy, 22 Mich. 117, it is said: “Damages will not be denied because their nature is such that they cannot be accurately measured. If they cannot be measured by a fixed rule, all facts and circumstances tending to show what they are should be submitted to the jury. ” '
In Occidental Consol. Min. Co. v. Comstock Tunnel Co., 125 Fed. 244, the court said: “While the plaintiff could not recover remote or speculative damages, based solely on conjecture, it is not deprived from recovering such general damages as are shown by the testimony to have been necessarily occasioned as a result of the breach, although the amount may not be made so absolutely clear and certain as to be easy of computation."
In Weitzman v. Nassau E. Co., 53 N. Y. Sup. 905, a child struck by an electric car was thrown upon the fender and carried a distance of thirty-two to one hundred and fifty feet, where he rolled off, and was killed by being crushed under the wheels. It was held that, irrespective of whether the child was guilty of contributory negligence in the first instance, yet when he was thrown into and upon the fender, of which the employees of the company had knowledge, the company became liable for any further injury which could have been prevented by the exercise of “reasonable care,” the question as to the existence of which should have been submitted to the jury.
It should' be borne in mind that if the plaintiff in this case sustained injury by reason of the one fact that he got his fingers caught between the rollers of the machine, he would have no ease, as he assumed that risk as one of the ordinary risks of his employment; but the action is for injuries to the plaintiff’s arm, which necessitated its amputation, and which injuries the petition charges “were directly caused by the negligence of defendant in permitting said emergency brake to become defective and out of repair.” The evidence we think clearly shows that the injuries complained of were the direct result of the failure of the emergency brake to stop the machinery, and not the direct result of plaintiff’s getting his fingers caught in the machinery, although the said injuries would not have occurred if his fingers had not been so caught.
In O’Brien v. McGlinchy, 68 Me. 557, it is said in an opinion by Peters, J.: “But where the negligent acts of the parties are distinct and independent of each other, the act of the plaintiff preceding that of the defendant, it is considered that the plaintiff’s conduct does not contribute to produce the injury, if, notwithskmding his negligence, the injury could have been avoided by the use of ordinary care at the time by the defendant.” So also in the case of Fickett v. Fibre Co., 91 Me. 268, it is held that, to defeat a recovery, the contributory negligence of the injured party must have contributed as a proximate cause of the injury. “If it operated as a remote cause, or afforded only an opportunity or occasion for the injury, or a mere condition of it, it is no bar to the plaintiff’s action.” But
In Lore v. American Mfg. Co., supra, Judge Gantt, speaking for the court, said: “It must be apparent from what has already been said that the slipping was not the sole cause of the injury. The injury would not and could not have happened but for another cause, to-wit, the insufficient and insecure guard around the gearing, and if plaintiff was in the exercise of ordinary ca.re at the time she accidently slipped, and but for the unsafe guard would not have been hurt, then under the decisions of this court she is entitled to recover.” In Harrison v. Kansas City El. Light Co., supra, wherein is reviewed a number of the eases above cited, Judge Marshall, who delivered the opinion of the court, said: ‘ ‘ Many other cases in this State might be cited illustrative of the rule in reference to concurrent negligence constituting proximate cause, but the foregoing cases are sufficient to 'demonstrate that if a defendant is negligent and his negligence combines with that of another, or with any other independent intervening cause, he is liable although his negligence without such other independent intervening cause would not have produced the injury.”
The case of DeGrazia v. Piccardo (1900), 15 Pa. Superior Ct. 107, is on all-fours with the case at bar, and we will therefore- quote liberally therefrom. In that case the plaintiff was employed to work about a machine called a macaroni roller, which machine was ordinarily safe to work about. While engaged at his work, either by his o’wn negligence, or in some way unexplained, his left hand was caught between the rollers and crushed, and his arm being further drawn into
“It may be, as the defendant’s counsel argue, that the defendant was not bound to provide a rope by which the machine at which the plaintiff worked could be quickly stopped. If the plaintiff had accepted service knowing that there was no such provision for his safety, it might well be argued that the injury he received was within the scope of the danger which both parties contemplated'as incidental to the employment; But having provided it, there was an implied obligation on the defendant not to aggravate the plaintiff’s risk by an omission to keep it in the condition in which under all circumstances the plaintiff had a right to expect that it would be kept. Perhaps if the defendant had removed the rope and the plaintiff had continued in his employment with knowledge of the increased risk, it could be urged that he accepted it; but it cannot be asserted that he accepted the risk of its becoming rotten and unfit for.the purpose for which it was obviously intended. The principle has been thus stated: ‘If a person undertakes to do an act or discharge a duty by which the conduct of another may properly be regulated and governed, he is bound to perform it in such a manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be properly performed, shall not suffer loss or injury by reason of his negligence.’ It is not too much to say that, presumably, the plaintiff entered and remained in the defendant’s employment in the faith that this appliance would be kept in reasonably safe condition. The learned trial judge correctly stated the duty of*365 the defendant and the principle underlying it in the follo'wing instruction: ‘But the question is, did' this defendant, having adopted this means of stopping the engine, it seeming to be the fact that there was no engineer at the engine continuously, did he, having adopted that means, and thereby certifying that that was a proper means, and *we will assume for the purposes of this case that it was, exercise due care in seeing that that appliance was kept in order?’ There was ample evidence to warrant the submission of this question to the jury, and to sustain their finding that if the rope had been in proper condition the machine could and would have been stopped before the injuries for which they awarded damages were caused. .
“This brings us to the question as to the liability of the defendant for the increased or additional inju-. ries sustained by the plaintiff in consequence of the negligently defective condition of the appliance provided for stopping the machinery, assuming that the plaintiff’s hand was caught in the rolls without negligence on the part of the defendant. Without entering into a discussion of the perplexing doctrine of proximate cause and its application to this case, we affirm the proposition of the plaintiff’s counsel that, under the facts necessarily implied in the verdict, the proximate cause of these additional or increased injuries for which a recovery was permitted was the negligence of the defendant in maintaining an insufficient and unsafe appliance for the stopping of the machine in the event of the occurrence of such an accident, which under the circumstances it was the defendant’s duty to know might occur. Although this negligence was not the primary cause of the accident it was the’ efficient cause of the injuries. Though the plaintiff might have lost the use of his hand by the accident, there was evidence to warrant a finding that he would not have lost the use of his arm if the defendant had exercised due care. It was an accident likely to occur in the use of such a ma*366 chine, and although it he conceded that it was not preventable it does not follow that the employer is not responsible for the consequences which were preventable by. the exercise of ordinary care on his part. ’ ’ On the question of the division and computation of damages, the court said: “The difficulty in determining at what precise point the negligence of the defendant became the efficient cause, and of drawing the line between the injuries attributable ho accident and those attributable to the defendant’s negligence, was not so great in the present case as to be an insurmountable objection to the plaintiff’s recovery. There was evidence from which the jury could determine this dividing line with reasonable certainty. The difficulty was not greater than in apportioning damages among those severally liable for the proportion of injury caused by the turning of mine water, culm, sawdust or the like in a flowing stream;” citing G-ould v. McKenna, supra, and other Pennsylvania cases.
But defendant’s counsel insist that even though the court erred in giving the instructions referred to, the verdict was nevertheless for the right party, as the plaintiff failed to make out a prima-facie case of negligence against the defendant, and the verdict should therefore be allowed to stand.
The burden, of course, was on the plaintiff to establish directly or by just inference, some want of care on the part of the defendant to which plaintiff’s injury might fairly and reasonably be traced. “Negligence, like any ultimate fact in issue, may be established as well by reasonable inferences from other facts as by more direct means of proof.” [Blanton v. Dold, 109 Mo. 64; Barnowsky v. Helson, 89 Mich. 523.] In the Blanton case, supra, the court said: “It is sometimes a close question to determine what inferences from facts may reasonably be drawn; but it is enough for our present purpose to say that we are of opinion that where such a machine as this starts into motion, entirely out
We think, upon the principle announced in the above cases, the failure of the emergency brake to operate so as to stop the machinery was prima-facie evidence of want of care in its construction or then condition, and that it was for the defendant to rebut such evidence of want of care on its part. But other facts in evidence indicate that defendant was not as careful as it should be in testing this safety appliance, and so discovering its condition before plaintiff was injured by reason of its being out of repair. The employees working at and about the machines were not permitted to test the appliance, and were warned, under penalty of being discharged, not to pull down on the brake bar “unless some one is caught in the machinery, or in case of severe accident.” Defendant’s foreman, testifying for plaintiff, stated that he generally tested the appliance himself, and that the company had no stated or regular time to test it. ‘ ‘ There was several times when we tested it that it did not work, but we fixed it up, and the last time I tested it it worked all right.” He further testified that “before Scheurer was hurt we had tried the automatic brake about every two or three weeks. ’ ’
Taking into consideration the object for which this safety appliance was installed, and the increased dan
In this case, the way of testing the appliance was' simply to start the engine and then pull down the brake lever to see if the safety appliance would do its work, and this, we infer from the evidence, could consume but little time. That being true, and considering the danger to which the plaintiff was exposed in the event the appliance was out of order, perhaps it would not be too much to expect such test and inspection to be made every morning. It was for the jury to determine that question, we think there was ample evidence to
The plaintiff was earning $1.75 a day at the time he was injured, since which time, according to the evidence, he had not been able to obtain permanent employment. He ran errands for people, and in that way was able to earn a few dollars a week. He held “one job as night watchman, at one dollar a night, for the Baden Laundry, but was laid off.” There can be no question that the loss of an arm is a grievous affliction, and particularly so to a workman who has to depend upon the work of his hands for subsistence. There are but few occupations open to him, when thus maimed, and his earning capacity is necessarily greatly impaired.
Under the evidence before us, and the principles of law applicable thereto, we are of opinion that the plaintiff has a prima-facie good case.
For the errors pointed out, the judgment is reversed and the cause remanded for new trial.