Morgan ex rel. Troll v. C. Hager & Sons Hinge Manufacturing Co.

97 S.W. 638, 120 Mo. App. 590, 1906 Mo. App. LEXIS 429

Opinion

GOODE, J.

(after stating the facts).

1. The record shows the petition for the appointment of a next friend for plaintiff was filed in open court, together with the written consent of Troll to act as next friend, and that the court thereupon appointed Troll. On the back of the petition was the filing mark. These proceedings for the appointment of a next friend we consider regular. Moreover, it may be observed that if the validity of the appointment was denied, it was by the general denial contained in the answer, which was ineffectual to raise an issue regarding the matter. [Baxter v. Transit Co., 198 Mo. 1, 95 S. W. 857.]

2. The main instruction for the plaintiff submitted the case stated in the second paragraph of the petition, which declared on the statute requiring belting, shafting, gearing and drums in factories to be securely guarded when possible. [R. S. 1899, sec. 6433.] A prima facie case for the jury was established for the plaintiff on that paragraph, if not on the first one. Defendant’s counsel say there is no evidence that the belt ■and the horizontal shaft resting on the pillow-block, were'so placed as to be dangerous to employees while engaged in their ordinary duties in the factory, and, hence, it does not appear that to leave them unguarded was a violation of the statute. It is apparent that if the vertical belt and the shaft rotating near the floor, were exposed to contact with the limbs or clothing of employees, they were dangerous; or, at least, that a jury might well infer as much. The main purpose of the statute is to compel such appliances as plaintiff worked about, to be screened or guarded so employees, ‘while in the discharge of their duties, will not have their clothing caught and their persons drawn into the machinery. Plaintiff swore his overall trousers were caught by the belt while he was engaged at his task, and his foot drawn between the pulley and the belting. The machinery in question fell within the effect of the statute and defendant was under the duty of guarding it, if this could be done. The possibility of doing it without interfering with the free and effective operation of the machinery, and whether the failure to do so caused plaintiff’s injury, were submitted to the jury and, we think, rightly. [Colliott v. Mfg. Co., 71 Mo. App. 171; Lore v. Id., 160 Mo. 602, 621, 61 S. W. 678; Henderson v. Kansas City, 177 Mo. 477, 493, 76 S. W. 1045.] There was much testimony that no kind of guard was practicable because if a guard was used, the pulleys could not be oiled. Testimony was given in opposition to this theory; one witness swearing that a sheet-iron screen could have been put around the appliances and a slide left in it through which to oil the bearings and pulleys, gome witnesses swore such a guard would have rendered the machinery more dangerous, because when oiling it an employee could not see inside the screen and might get his hand caught. These were matters for the jury, the evidence not being of a conclusive character either way.

The proposition most emphasized on the contention that plaintiff should have been nonsuited, is that the evidence shows the belt and shaft were sufficiently protected on the west side, where the accident happened, by the pillow-block. We have experienced great difficulty in realizing from the descriptions of the witnesses, just how the pin-pointing machine, the horizontal shaft, the vertical belt which operated it, the pillow-block and the tank on which the pan rested, were situated with respect to each other, and are not sure we know their exact locations. Our impression is that the tank, with the pan on it, was to the west of the table at which plaintiff sat and just north of the horizontal shaft; that the pillow-block was a slight distance further to the right; that plaintiff went around the pillow-block into the aisle and a little to the west and rear of the tank, and, when at that point, put his foot on the low box near the tank, in order to reach the pan, and while reaching for the pan with his foot on the low box, his clothing was caught by the belt and his foot drawn between it and the loose pulley. We are giving, of course, the impression yielded by plaintiff’s testimony and stating the facts as we understand he related them. Defendant’s contention is that the ’ pillow-block sufficiently guarded the belt and shafting to prevent an employee from coming in contact with them; which amounts to saying that plaintiff’s clothes could not have been caught in the manner he stated because the pillow-block prevented them from coming into contact with the belt. This proposition is by no means obvious from the evidence. There was a discrepancy regarding the height of the pillow-block, some witnesses saying it was not more than a foot high. If this was true, it is plain that when he reached for the pan, with his foot on the low box seven inches in height, the pillow-block would only reach five inches above plaintiff’s foot, and if the width of the block was only five inches, 'as was sworn, his loose overalls might have been caught by the belt. The physical facts are not so conclusive that it was impossible for tbe accident to happen in the manner plaintiff related, that we can disregard the finding of the jury on the issue; though, no doubt, strong proof was adduced of admissions by plaintiff that he got hurt in an effort to shift the belt with his foot. That testimony told against the truth of his statement on the stand, but we cannot accept it as conclusive against his case. The adequacy of the protection afforded by the pillow-block is not more obvious from the physical facts, than was that of the rods around the gearing by which the plaintiff in Lore v. Mfg. Co., supra, was hurt; and in that case whether or not the gearing was sufficiently guarded to constitute compliance with the statute, was held to be a question for the jury.

3. No error was committed in refusing to permit the deputy factory inspector to testify that the machine was sufficiently guarded when he saw it in January after the accident or to state what report he made to his superior, or that he made no order on defendant to install other guards. He was not. permitted to answer the first question asked, which was his opinion as to the adequacy of the guards he found around the machinery, on account of the form of the question. The answer to the second question, regarding his report, was excluded on the ground that it called for hearsay evidence. The court remarked that he would permit the witness to state whether or not, in his judgment, it was practicable to box the machine. That was a question about which expert evidence was competent, and, in fact was received. However, defendant’s counsel did not propound such a question to the inspector. The exception to the exclusion of his evidence goes mainly to the refusal to permit him to state that, in his judgment, the machine was sufficiently guarded. Waiving the point that, as propounded, the question was leading, we think the answer to it was inadmissible for the reason that it called for an opinion about a matter which was to be judged of by the jury from their observation and experience, instead of from the testimony of experts. The line dividing those matters regarding which opinion evidence may be given from those as to which it may not, is vaguely defined. The. general doctrine is that expert testimony is not admissible concerning things about which the opinion of one intelligent man is as good as another’s. [Kent v. Miltenberger, 15 Mo. App. 480, 485.] The difficulty occurs in the application of the rule; that is to say, in determining whether or not the thing inquired about is of such a character that the average man, on being informed of the facts, can come to a sound conclusion about it by applying his own knowledge and judgment — whether it falls within the sphere of common experience and observation or is of an unusual, scientific or technical nature. [Protection Ins. Co. v. Harneer, 2 Ohio St. 456; Stillwater Turnpike Co. v. Coover, 26 Ohio St. 520; Sowers v. Duke, 8 Minn. 28; 1 Wharton, Ev. in Civil Cases (3 Ed.), sec. 436.] The inquiry regarding the degree of protection to employees in defendant’s factory, furnished by the objects about the belt and shaft was equivalent to asking if the belt and shaft endangered employees when engaged in their ordinary duties. Now that, we think, was a matter which the jury were competent to determine after the facts had been stated by the witnesses. Such we apprehend to be the sound conclusion in view of the decisions in this State on analogous facts. In Brown v. Plank Road Co., 89 Mo. 152, the action was for damages for injuries received by plaintiff! from a defective highway. Opinion evidence was offered on the question of whether the highway was in a dangerous condition, and was .held to have been properly excluded, as the issue was one for the jury to decide from the facts proved. [See, too, Draper v. Ironton, 42 Wis. 696.] In King v. Railroad, 98 Mo. 235, 11 S. W. 563, the action was by a widow for the killing of her husband by a railway train. The accident oc curred at a public crossing. Several witnesses were asked whether or not the crossing was' dangerous for use by persons unacquainted with it, and such evidence was held to be incompetent; the court saying that the witnesses should have been required to state the facts showing the surroundings and the location of the crossing and from those facts the jury should have determined whether or not it was dangerous, [See, too, Couch v. Railroad, 22 S. C. 557; Way v. Railroad, 40 Iowa 341; Tolson v. Coasting Co., 17 D. C. 39, 44.] In Baker v. City of Madison, 62 Wis. 143, it was held that a city surveyor, civil engineer and superintendent of streets could not express an opinion as to whether a street gutter was in a safe or an unsafe condition; and the like ruling was made in Weeks v. Lyndon, 54 Vt. 638, regarding expert testimony that a bridge was reasonably safe. In Amstein v. Gardner, 134 Mass. 4, 9, expert testimony to show that a cattle-guard was necessary at a particular point on a railroad was held to be inadmissible. In St. Louis, etc., Railroad v. Ritz, 33 Kan. 404, opinion evidence regarding the sufficiency of cattle guards was excluded. Whether or not the machinery by which plaintiff was hurt was so guarded as to protect employees from the needless risk of their clothing or persons getting caught or whether it was dangerous to them, were questions the jury was called on to find; and they were competent to determine them from their own knowlege of such matters.

4. The verdict was not, in or opinion, so plainly excessive that we would be justified in disregarding the jury’s conclusion. One physician testified that the limb was permanently distorted and that more or less pain would be felt by plaintiff.

5. We approve the instruction on the degree of care required of plaintiff. [Burger v. Railroad, 112 Mo. 238, 20 S. W. 439.]

The judgment is affirmed.

All concur.