Lohmeyer v. St. Louis Cordage Co. , 137 Mo. App. 624 ( 1909 )

REYNOLDS, P. J.

(after stating the facts). — The facts in the case are so fully set out in the report of it in the 126 Fed., as those facts were developed at the trial in the United States Circuit Court, that it is not considered necessary io set them out here, it being sufficient to say that the evidence seems to have been practically the same at the trial in our- State circuit court as when the case was tried in the United States Circuit Court.

The action is founded on section 6433, Revised Statutes 1899. The dissenting opinion of Judge Thayer, in St. Louis Cordage Co. v. Miller, in our opinion, is so entirely in line with the decisions of our Supreme and,Appellate Courts that we can add nothing to a discussion of the question by attempting to elaborate upon that opinion. Furthermore, this court, in an opinion delivered by Judge Goode, in the case of Strode v. Columbia Box Co., 124 Mo. App. 511, has examined the questions involved so thoroughly that we do not think it necessary to go into them here. While in the Strode case, Judge Goode' held that the machinery there complained of and by the breaking of which the accident occurred, was not so placed as to be dangerous to persons employed in connection with it, he very clearly points out cases in which under the statute, the machinery must be guarded as being dangerous in itself and in a dangerous position. The reasoning of the judge in that case is entirely applicable to this case, and we have here presented a case in which by the verdict of the jury it is determined that these cogwheels, unprotected, were dangerous and of such a nature as required — under the statute, that they be guarded.

Our Supreme Court, in Henderson v. Kansas City, 177 Mo. 477, held that the trial court did not err in submitting to the jury whether or not the fact that the machinery was not guarded with rails, as required by statute, contributed to plaintiff’s injury. That issue was submitted in this case.

We think the first instruction given, which we have set out substantially as given, was correct and covered the whole case. There was no error in the instructions as to the measure of damages or as to what was meant by the weight of testimony, and the instructions as to the number of jurors-required to concur in a verdict was passed on by the Supreme Court in this very case. The three instructions asked by the appellant were properly refused — their error lies in singling out particular facts, in part, and furthermore as far as they were correct, they were covered by the instuction given at the instance of plaintiff. There was ample testimony in the case to sustain the verdict of the jury, in finding for the plaintiff, and the circuit judge, cutting the amount down as he did, has certainly gone as far as any court could be ashed to do, considering the facts in the case and the injury to the plaintiff, in guarding against an award of an excessive amount in favor of plaintiff and against defendant.

We find no reversible error in the case and the judgment is affirmed.

All concur.