Turner v. Tyler Land & Timber Co.

REYNOLDS, P. J.

This action was commenced in the circuit court of Pemiscot county. The petition avers that on March 18, 1907, plaintiff was employed in defendant’s stave mill and factory to run and operate a bolting saw; that in such employment it'was his duty to keep dust and trash which accumulated under and which was produced by the saw in cutting bolts out and away from the saw so that it could be carried away by means of a blow pipe; that this bolting saw operated on the end of a long iron shaft which revolved with exceedingly great speed; that the saw and its appurtenances were geared to the shaft by means of a large iron clutch-coupling; that to clean out this sawdust, plaintiff was obliged to go in a pit under this shafting to which the clutch-coupling was affixed, and to get down on his hands and knees and work along, about and immediately under this shaft and clutch-coupling. Averring that the shaft with this clutch-coupling as arranged, was exceedingly dangerous, which fact was known or might have been known to defendant but was unknown to plaintiff, and averring that he was wholly inexperienced in the operation of the bolting saw and in the work of cleaning out under it, plaintiff charges that while he was so working, the shaft with the clutch-coupling was revolving and he • was working directly under the latter; in its revolution it struck him on the head, injuring him severely, laying him up for some time, causing him to lose much time from his labor, involving him in the expenditure of large sums for medical attendance, diminishing his wage-earning capacity, shattering his nervous system and permanently injuring him, plaintiff asks damages in the sum of $10,000.

The answer, after a general denial, pleads contributory negligence, assumption of risk, and negligence of plaintiff’s fellow-servants. It is further pleaded’ that the statute invoked by plaintiff (section 6433-, article 17, chapter 91, Revised Statutes 1899) does not *488 apply, and that if it does, the placing of guards around the mandrel and coupler would have interfered with the free, practical and effective operation of the machinery, for which reason defendant avers it was under no obligation to guard the machinery; that this mandrel and coupler were not within the meaning of the statute referred to and were not so placed in the mill as to be dangerous to persons employed therein while engaged in their ordinary duties and were not dangerous to plaintiff while engaged in the ordinary duties of his employment, and that defendant was under no duty, under the statute, to place guards around or about the machinery mentioned in the petition. It is further set up that defendant was not liable under the statute until a factory inspector had first examined the machinery and pronounced it not sufficiently guarded. It is also pleaded that this statute applies only to cities of 5000 inhabitants or more and that the town of Tyler, where the mill is located, has less than 100 inhabitants. Finally the statute is attached as unconstitutional, as in violation of sections named of the Constitution of the United States and of this State.

It does not appear that a reply was filed to this, but the cause was tried as if these averments in the answer were in issue.

At a trial before the court and a jury there was a verdict for plaintiff.in the sum of $7000, judgment following, from which an appeal was perfected to the Supreme Court. There it was held that the constitu-. tionality of the statute referred to having been determined by the Supreme Court prior to the trial of this cause, that question was no longer open, and the amount of the judgment not being within the jurisdiction of the Supreme Court, the cause was transferred to our court. [See Turner v. Tyler Land & Timber Co., 259 Mo. 15 , 167 S. W. 973 ,]

The constitutional question being out of the case, leaves it for our determination on its merits.

*489 The errors here relied upon are founded upon the remaining defenses, as also on the claim that there is no evidence to support the verdict; to error in giving and refusing instructions; to error in the admission and exclusion of testimony, and to the amount of the verdict.

The accident involved happening on the 18th of March, 1907, section 6433, Revised Statutes 1899, governs, the words “machines, machinery,” having been interpolated into that section by the Act of June 14, 1909 (Acts 1909, p. 502). Hence section 7828, Revised Statutes 1909, must be read, for the purposes of this ease, with those words eliminated.

It is argued that the trial court erred in overruling defendant’s demurrers to the evidence in that the evidence, as disclosed by plaintiff and as a whole, showed that plaintiff, as a matter of law, was guilty of contributory negligence. We do not so construe the evidence. Plaintiff had worked as a “bolter” as his employment is called, that is, in the operation of a saw used in cutting up bolts out of timber, for only about half an hour prior to the accident, although working in and about the mill some months before. He had no particular knowledge of the manner of operating the bolter and its attachments prior to that. He testified that the foreman told him to “run the bolter and keep the dust pipe cleaned out. ’ ’ Attached to and a part of the line shaft was what is called a clutch-coupler, which, revolving with the shaft, struck Mm on the head. This clutch-coupler had elbows or arms projecting about six or eight inches on each side of it, which, in its rapid movement, could not be readily seen, and plaintiff testifies in the most positive manner that he neither saw these nor knew of their presence. He went to the place where, in the ordinary discharge of his duty, he was bound to go, to clean out the dust pipe, which was in the pit and under the shafting and clutch-coupler, and it was while so engaged that he was struck by these projections. It is true that the version given *490 by plaintiff as to tbe foreman ordering Mm to clean, ont tMs blow pipe, is contradicted by other witnesses, but that left it for the jury, under proper instructions, and we cannot disturb their verdict on this issue.

It is further argued that plaintiff had no cause of action because the statute applies only to such macMnes as are dangerous to employees while in the performance of their ordinary duties. There is substantial evidence that plaintiff was at the time engaged in his “ordinary duties,” that is, at the time operating the bolter and in connection with that cleaning out the dust from the blow pipe. That the exposed and unprotected shafting, of which there, is substantial evidence that tMs clutch-coupler was a part, was “so placed as to be dangerous to persons employed there or thereabout while engaged in their ordinary duties,” (Revised Statutes 1899, sec. 6433) is clear. So the evidence shows and so the jury found.

A further assignment of error is that plaintiff could not recover, because, as is argued, the statute does not require the guarding of the character of clutch-coupler wMch caused the injury. We are referred, under tMs paragraph of the assignment, among other cases, to Strode v. Columbia Box Co., 250 Mo. 695 , 158 S. W. 22 . That may be taken as one of the latest decisions of our Supreme Court construing tMs statute. Applying that statute to the case then before the Supreme Court, it is said (l. c. 707), that as the belting wMch had caused the injury “simply passed through the floor, .went around its pulley and went out into the room above and ran so far to find its driving-pulley that the evidence speaks of it as an ‘idle’ pulley upon, which it ran fourteen feet above the floor.” Under these facts the court held that to guard this belt, in the sense in which it is claimed it should have been guarded, with its six or seven “idlers,” it would have been boxed from end to end; that no one could tell wMch way any of the pieces of the belting would fly *491 if broken and to guard them in the sense suggested would exclude all access to them and in many cases materially embarrass their operation.

In Simpson v. Witte Iron Works Co., 249 Mo. 376 , 155 S. W. 810 , our Supreme Court also passed upon this section of the statutes in a case where an employee was tripped by a belt which was lying in the aisle, thrown to the floor and permanently injured, it being claimed that in its unprotected position the belt was dangerous to employees. The court held that this belting need not be guarded, because it was not so placed that its normal operation would injure an employee who should approach near enough to be caught by its force or subjected to its activity. The belting over which plaintiff had stumbled occupied two-thirds of the width of the passageway and was in a state of absolute inertia and had no greater power to inflict the injury on plaintiff, than would have happened if he had stumbled over or against a guardrail of equal height, eighteen or twenty inches, so that the railing around it would have been no less injurious to a man walking across it with his head turned in another direction than was the idle belt. In this latter case the authorities are so thoroughly reviewed on the construction to be placed upon this whole statute, and the chapter in which it is found, that it is hardly necessary to refer to other cases.

The evidence in this case presents an entirely different state of facts. There is affirmative evidence on the part of plaintiff that it was entirely practicable to have boxed or put a guard around this shaft with its clutch-coupler so as to render it safe for the operator working under it and that to have so guarded it would have in no manner interfered with its operation.'

Whether this clutch-coupler is part of the shafting, as several qualified witnesses testified that it was, or whether it is gearing, gearing being defined generally as “the parts, collectively, by which motion is trans *492 mitted from one portion of machinery to another” (Webster, New International Dictionary), it is clear that it was a part of either the one or the other, and hence under the provisions of section 6433, Revised Statutes 1899, before that section was amended. Judge Woodson, in Huss v. Heydt Bakery Co., 210 Mo. 44 , l. c. 67, 68, 108 S. W. 63 , has well said, treating of the underlying policy of this law: “The Legislature knew that the human mind and conduct were such that a servant in the performance of his duties to his master, surrounded by dangerous machinery, in motion, with his mind concentrated upon his work, oblivious to his' surroundings, is liable to slip or take a misstep and fall into the revolving machinery, or thoughtlessly thrust his hand or other portion of his body into the gearing or other portion of the machinery; and if not ‘safely and securely guarded,’ he would in consequence thereof receive injuries of a serious character.” That meets the situation here very accurately.

It is further argued that plaintiff could not recover under the statutes sued upon as there was no evidence that the State Factory Inspector had directed the installation of guards on the coupling in question. This proposition has been disposed of adversely to defendant by our Supreme Court in Strode v. Columbia Bbx Co., supra, and also discussed and disposed of contrary to the contention of appellant by our court in Austin v. Bluff City Shoe Co., 176 Mo. App. 546 , 158 S. W. 709 .

In addition to the point against the constitutionality of the act which has been disposed of by the Supreme Court in Turner v. Tyler Land & Timber Co., supra, it is said that the statute sued upon by plaintiff has no application to the facts in this case as it applies only to cities of 5000 inhabitants or more. This statute was adopted substantially in its present form by an Act approved April 20, 1891. ' [Acts 1891, p. 159.] It *493 is true that the first section of the act, requiring the appointment of an inspector where the same is necessary, does in terms apply alone to cities of 5000 inhabitants or more. But the body of the Act is general. As originaly adopted it was entitled: “An Act relating to manufacturing, mechanical, mercantile and other establishments and planes, and the employment, safety, health and work hours of employees.” [See Session Acts, supra.] The fact that in the revision of 1899 it was placed in chapter 91, relating to ‘ ‘ Cities, Towns and Villages,” and that it is there designated as article XVn of that chapter and is headed “Factory Inspection in Cities with 5000 Inhabitants or More,” does not alter the fact that the act itself, as adopted by the General Assembly, shows that it was general in its application and applied to all cities and towns; in short, to all manufacturing establishments wherever situated in the State. The revisors, merely compiling the statutes, by so placing and designating the act, could not change its meaning or application.

The point is made that plaintiff’s petition wholly fails to state a cause of action, and that the trial court-had erred in refusing to sustain defendant’s objection, made ore temos, to the introduction of any evidence whatever under that petition. The authorities cited under the first point are relied on for this, but we do not think any of them support it.

Another assignment of error is on the admission of incompetent testimony on the part of plaintiff, it being claimed to have been “opinion” evidence of witnesses, whom, it is said, were not qualified as experts, to the effect that this clutch-coupling could have been safely guarded without interferring with the operation of the machinery. This assignment is untenable. The witnesses referred to, it is true, were blacksmiths, but they were also machinists, so employed by defendant, and were the very men who were personally ac *494 quainted with this particular appliance. Their testimony was properly admitted.

It is further urged that the court erred in excluding, on plaintiff’s objection, competent testimony offered by defendant as to the proper method which should have been employed by plaintiff in cleaning the blow pipe. This is not tenable. There might have been other and safer methods for doing this work, but there is no evidence, nor did the evidence offered and excluded, tend to show that plaintiff was aware of these other methods. Even if it be true that there are two methods of doing a thing, one of them less dangerous than the other, it does not follow that the plaintiff is negligent or at fault because he happens to select the more dangerous.

The instructions given on behalf of plaintiff are objected to as erroneous and improper interpretations of the statute and as ajaplied to machinery involved in this case. A careful consideration of those instructions fails to show this. To the contrary, our consideration of them satisfies us that they were drawn with very great care and in direct conformity to the statute and the issues made.

It is urged that the court erred in refusing four-ten instructions asked by defendant. It will serve no useful purpose to reproduce them. Eight of them were presentations of the defendant’s claim that the act was unconstitutional. These are disposed of by the Supreme Court in its opinion in this case heretofore cited. The remaining instructions covered matter correctly set out in other instructions or were not the law.

Finally, it is urged that the verdict is so excessive as to indicate prejudice and passion.

The evidence of the physician who attended this young man on the day he was injured, tended to show-that the injury was very severe, and that the effects resulting from it were apt to be permanent. It -appears that this is the second trial of the case and that *495 on the former trial there was a verdict for plaintiff in the sum of $8000. Here it is for $7000. One of the physicians who attended him immediately after his injury, stated that plaintiff had sustained a fracture of the skull. When this physician first saw him he was unconscious. He further testified that about twelve hours after the injury, hé and another physican assisting, trepanned the skull at the back of the head, removing two broken portions; that the skull was considerably depressed by the blow; had been fractured and driven in; that when the bone was removed, a blood vessel of considerable size was found to have bursted, compelling them to perform the operation of torsion, that is, twisting and tying it together. This surgeon further testified that at the time of this trial, which was over four years after the accident, the depression in the back of plaintiff’s skull was still visible; that the injury, even after the wound healed, would be ápt to superinduce headaches and nervous troubles. One of the attending physicians gave it as his opinion that the result might be a permanent affection of the nervous system of plaintiff. Another one testified that in his opinion plaintiff’s nervous system is impaired and that the impairment might be due to the injuries which plaintiff had received. Asked if he had ever heard plaintiff complain of being nervous and of having pains in his head, neck or back, he answered that he had prescribed for him for some months after his injury and that he had complained of these symptoms. This was drawn out by counsel for defendant on cross-examination of this physician. Considering the evidence of the injury, its extent, its probable duration and after effects, we cannot say that the verdict was excessive or that it indicates prejudice, passion or bias.

In short, plaintiff’s evidence, considered as a whole, tended to prove his case as set out in his petition.

*496 We see no reversible error to the prejudice of defendant in the action of the court during the trial, and its judgment should be and is affirmed.

Nortoni and Allen, JJ., concur.