Brashears v. United Iron Works Co.

ROBERTSON, P. J. Plaintiff sued the defendant in the circuit court of Greene county to recover the sum of $5000 on account of personal injuries received in the plant of the defendant in Springfield, by reason of getting his left hand caught in an unguarded cogwheel of certain machinery called a “rattler,” then being operated by the defendant in its said plant, while placing oil in an oil cup in close proximity to the said cogwheel, and recovered judgment to the amount of $1602.50. The plaintiff based his petition upon section 7828, Revised Statutes 1909. At the conclusion of the testimony the issues were submitted to the jury under that section of the statute, and also on the question of contributory negligence on the part of the plaintiff. The case was tried in the circuit court on July 14, 1911. Appellant filed its brief in this court on March 4, 1912, assigning as error the refusal of defendant’s requested instruction in the nature of a demurrer to the evidence offered at the close of all of the testimony because, as it is said, the plaintiff did not prove that any notice had been' given to the defendant by the [512] State factory- inspector, or Ms assistant, to put guards over the cogwheels, which, notice, it is contended, is essential to put into operation said section 7828. The only other assignment of error contained in appellant’s brief is on the giving of plaintiff’s instruction’ numbered one, which alleged error aims at the same point. Appellant, under the points and authorities in its' brief, insists that the accident complained of is the result of the contributory negligence of the plaintiff, but as that is, in this case, a question for the jury upon which they were required to and did pass, under full instructions on the question in behalf of the defendant, it is unnecessary for us to discuss the weight .of the evidence. I am of the opinion that it is not necessary for us to decide whether or not the ‘statute changes the ordinary rule of contributory negligence, because this is a case, I think, in which a court should not hold as a matter of law that the plaintiff was guilty of contributory negligence, irrespective of any statutory provisions providing for the protection of the machinery. The defendant alleges the contributory negligence on the part of plaintiff to be that “he had upon his left hand a pad consisting of an old piece of belting with a slit cut in one end of the same and slipped over his hand and hanging from his left wrist, and that while plaintiff was oiling said rattler he carelessly, negligently and needlessly allowed said pad, dangling from his wrist as aforesaid, to become caught in the cogs of the rattler, drawing it into same and drawing his left hand in after it;” and also that plaintiff could . have shut the power off and stopped the rattler and could have removed the pad from his hand. There was testimony tending to prove that the pad was not dangling from plaintiff’s left wrist, but that he had it on his hand as used by all of defendant’s employees to protect their hands in working with the iron in defend [513] ant’s plant. The jury and the trial court were shown the size of the pad and how it was adjusted on the hand. Clearly to me on this point the question of contributory negligence was properly submitted to the jury. The proposition of the propriety of removing the pad, so far ás can he gathered from the record, or shutting off the power were also, I think, questions for the jury, irrespective of the statute concerning guards. Entertaining these views, I consider any remarks relative to the effect of the statute on the question of contributory negligence outside the questions of law involved here and shall for that reason refrain from a further discussion of that point. At the time this case was tried, it is evident that the appellant was cognizant of the opinion of the Supreme Court of this State in the case of Williams v. Railroad, 233 Mo. 666, 136 S. W. 304, holding that the above section of the statute did not become effective until after notice was given, and the appellant has-based its right to reversal by this court principally upon that proposition. However, in the case of Simpson v. Witte Iron Works Co.,-S. W.-, the Supreme Court in Bane unanimously overruled the Williams case, supra, upon the question of notice and held section 7828 effective without the notice mentioned in section 7842. Therefore, it is our duty to affirm the judgment of the circuit court which is accordingly done. Sturgis, J., concurs in separate opinion. Farrington, J., not sitting.