Doerr v. St. Louis Brewing Ass'n

BRACE, P. J. This is an action for personal injuries instituted in the St. Louis City Circuit Court, taken by change of venue to the St. Louis County Circuit Court, where the plaintiff obtained judgment for $5,000, and the defendant appeals. At the close of the plaintiff’s evidence the defendant demurred thereto. The demurrer was overruled, and exception taken. The defendant offered no evidence, and the case was submitted to the jury on instructions. The question to be determined on this appeal is whether the evidence for the plaintiff made a case for the jury. It appeared from that evidence that on 2nd day of June, 1899, the plaintiff was in the employ of the defendant as a fireman in one of its breweries in the city of St.. Louis, in which was a machine operated by steam; to oil which, was among the duties of his position. That on that day he was engaged in oiling the crank shaft of the machine while the same was in motion. The motion of this shaft was vertical, the head revolving in a pit below. This crank pit was about two feet deep, two feet wide and two feet long, was directly under the crank shaft, and in it the head of the shaft moved up and down elliptically, approaching the bed plate at the bottom closely, and at no time leaving open a space of more than eighteen inches. On the shaft [554] was a stationary oil cup, directly above tlie crank pit, for the reception of oil for the machine. The appliances furnished the plaintiff for supplying this cup, were a small funnel made to fit in the oil cup, and an oil can or filler; the latter about six inches in diameter, and about six inches high; from the bottom of which projected a spout about five inches long. In order to use them, the oiler stood up in front of the machine, placed the funnel in the oil cup and poured the oil into the funnel from the filler, while the shaft was in motion. On the day aforesaid, the plaintiff was so engaged in supplying this cup with oil, when the can which he was holding in his hand “bumped up against the funnel,” displacing the funnel, which fell into the crank pit; and thereupon he stooped down, reached into the crank pit with his right hand and arm, to recover the funnel, when his arm was caught by the shaft, above the wrist, and so mangled as to subsequently necessitate amputation. There was no person present when the accident occurred except the plaintiff. He testified that when he reached down into the pit for the funnel, the shaft was revolving at the rate of about eighteen or twenty revolutions a minute. That he could have, recovered the funnel in half a second. That when his arm got right under the shaft it began to revolve at the rate of at least forty revolutions more a minute, and the theory of the plaintiff’s petition is, that his injury was caused by defective appliances furnished him for oiling the machine, and a defect in the governor of defendant’s engine, by reason of which the speed of the crank shaft was instantaneously accelerated as stated, while his arm was in the crank pit. The answer is a general denial and a plea of contributory negligence. The plaintiff testified further that he had been in the employ of the defendant as fireman continuously from the first'of August, 1898, until the day of the accident, and that he commenced the duty of oiling the machinery in March, 1899, and continued in the discharge of that duty from [555] that time until the accident. That he oiled this crank shaft every half hour, that in doing so the funnel frequently fell into the shaft pit, and that he had always recovered it in the manner in which he attempted to do it in this instance, and that during all that time he had never observed the shaft move suddenly with accelerated speed before the moment in which he was injured. Other evidence for the plaintiff tended to prove that the maximum speed of the shaft was sixty revolutions a minute. That this oil can and funnel had been used in oiling the machine for some years prior to the accident.' That it was necessary to pour the oil into the stationary cup on the shaft while it was in motion. That in doing so the funnel sometimes became displaced and fell into the pit. That it was the custom of the engineer with' whom the plaintiff worked, in such instances, to extract it from the pit with his hand. That if the shaft was moving at the rate of sixty revolutions a minute, this would have to be done within one second, at thirty revolutions within two seconds, aiid at twenty revolutions within three seconds, to escape being caught. That the funnel could have been easily recovered, without risk of injury, by means of a stick with a nail driven through the end of it or by a piece of wire bent at the end in the shape of a hook, and that material for such appliances were on the premises easily accessible to the oiler. The evidence further tended to prove (although the plaintiff says he had never observed it) that the engine would at times without any apparent cause, suddenly commence moving at an increased rate of speed. The actual cause of this eccentric movement was frequently sought for but never found, but was attributed by the engineer to some defect in the governor. (1) There was no evidence tending to prove that the oil can or funnel, the appliances furnished to plaintiff ■with which to oil the machine, were defective or unsafe. But it is contended that there was evidence tending to show that the plaintiff’s injury was caused by the defect [556] in the engine, which caused the eccentric movement in the crank shaft testified to "by the plaintiff. If it be credible that the plaintiff could have reached down two feet to the bottom of this pit, grasped the funnel, and withdrawn it from the pit within a second of time, and while attempting to do so this crank could in an instant, have jumped from a speed of one revolution in three seconds to one revolution in a second, and that the plaintiff who was not an. engineer or skilled mechanic could in his situation have detected and approximately estimated the alleged instantaneous increase of speed, it might be conceded that there was evidence tending to show that but for this eccentric movement the plaintiff might not have been injured. Counsel for defendant contend that the facts upon which this proposition is based are incredible, and hence there was no case for the jury. The proposition may be conceded, however, but it does not then follow that the case should have gone to the jury. In order that it should so go, it devolved upon the plaintiff to introduce evidence tending to prove more than this, i. e., that this eccentric movement was the proximate cause of his injury. Now, it is manifest beyond question, from the plaintiff’s own evidence, that if he had kept his arm out of the shaft pit he could, with ordinary care, have gone on oiling this machine until doomsday, without suffering any injury from the eccentric movement of the engine. That pit was a dangerous place for a human arm to be in at any time when the shaft was in motion, whether moving at the rate of one revolution every one, two or three seconds. No man has the moral or legal right to put his life or limb to the hazard of a second, unless duty and the exigencies of his situation imperatively demand it. No man of ordinary prudence will do so. There was no such demand in this instance. The plaintiff was a man of mature years. ITe had been oiling this machine for four months. He knew the danger of thrusting his arm into this pit when the shaft was in [557] motion. The risk was manifest, the danger imminent. The discharge of no duty within the scope of his employment called for the assumption of such risk. The recovery of the funnel was a matter of little or no importance and could have been easily effected without incurring the risk. The fact that the plaintiff had before this accomplished the feat of recovering the funnel by band when the shaft was in motion, or that others may have done so, affords no excuse for his action nor furnishes any reason for charging his employers with the consequences of his folly. Hence, conceding that the marvelous instantaneous acceleration of the'speed of the shaft took place as testified to by the plaintiff, this eccentric movement could at most have been no more than a cause, contributing with his own recklessness and want of ordinary care, to his injury. The court erred in refusing to sustain the demurrer to the evidence, and for this error the judgment will be reversed. All concur, except Robinson, J., absent.