150 Mo. App. 162 | Mo. Ct. App. | 1910
This is a suit for damages accrued on account of personal injuries inflicted through the alleged negligence of defendant. At the conclusion of the evidence, the court instructed a verdict for defendant and plaintiff prosecutes the appeal.
Defendant owns and operates a bakery in the city of St. Louis and plaintiff was in its employ at the time of his injury. It appears plaintiff had been engaged in defendant’s service about the bake shop for nearly four years. His duties pertained somewhat to that of a common laborer. He would aid at whatever seemed to be necessary for the time being. Defendant had several machines in the bakery, Avhich were propelled by electric poAver and plaintiff had Avorked about those which are called the dough machines but had never before the day of his injury had experience with the particular machine by Avhich he was injured. He received a broken forearm as a result of permitting it to pass between what is knoAvn as a screw-arm and a fixed horn on a machine at Avliich he was working Avhile the screw-arm was ascending. It is someAvliat difficult to
At the time of injury, plaintiff was standing on the Avest side of the machine and operating the same, as this appeared to be a more convenient place for him to deposit dough in the hopper. The quantity of dough from Avhich the hopper was occasionally filled was situate on the southwest side of the machine. Plaintiff says there Avas a space of about eighteen inches between the west side of the machine and the table on which the dough Avas situate. The foreman did not instruct him to stand on the west side of the machine. Indeed, the'only instruction Avhich appears to have been given by the foreman, in so far as that side of the machine is concerned, Avas to the effect that he should beware of the chain Avhich operated there. Plaintiff testified pointedly that the foreman did not instruct him to stand on the west side of the machine when it was operating and he says, too, that at the time the foreman demonstrated to him how the machine should be operated, both he and the foreman stood on the east side and it appears the south
Plaintiff had several duties to perform, among which was to occasionally look after the fire beneath a boiler in an adjoining room as well as the intake of water in the boilers; and besides operating the machine on which he was injured, it was his duty to weigh the loaves of bread occasionally to see that they were not too large nor too small. But it seems the machine operated without particular attention. In respect of it plaintiff’s duties required no more than that he should supply the hopper with dough, see that it performed, and occasionally readjust the screw-arm for different sizes of loaves. As before stated, at the time of his injury, plaintiff had taken his position on the west side of the machine in a narrow space of about eighteen inches between it and the table on the west on which a quantity of dough was resting and was engaged with both hands in the act of adjusting the screw in the arm as it ascended and descended between the two iron horns. With one hand he was turning the screw in the end of the screw-arm and with the other adjusting the set screw about sis inches below the free end of the screw-arm. The machifie was in operation during the time and the screw-arm ascended with plaintiff’s hand resting thereon. One of his arms was caught between it and the horns and was broken. The remarkable feature of the case is it was not entirely dissevered, for the arrangement much resembles a pair of shears. Plaintiff had begun work with this machine at two o’clock in the’ afternoon and he managed it successfully until about four when a short rest was had for lunch. Immediately thereafter, at about five o’clock, he was injured. It ap
There are five allegations of negligence contained in the petition. It is alleged that defendant breached its duty to exércise ordinary care for his safety,—
First, In putting plaintiff to work at said machine when defendant knew, or in the exercise of ordinary care ought to have known, that he was ignorant of the dangers attending the operation thereof without first properly instructing him as tó the proper methods of operating same;
Second, In failing to- properly instruct plaintiff as to the dangers incident to the operation of said machine;
Third, In requiring plaintiff to operate said machine when it knew, or in the exercise of ordinary care should have known, that said machine when operated in the manner in which plaintiff was required to operate the same was a dangerous and unsafe machine;
Fourth, In requiring plaintiff to operate said machine while standing in a position and place which rendered the operation of said machine by him unsafe and dangerous;
Fifth, In failing to guard the moving chain.
As to the last allegation of negligence, that pertaining to defendant’s failure to guard the moving chain, it may be said that it was not so much as referred to as a ground of recovery on the trial and appers to have been wholly abandoned. Indeed, the chain in no manner contributed to plaintiff’s hurt and whether guarded or ungmarded, the fact is immaterial, for no one mentions At in connection with his injury and it is only mentioned in the evidence as being the sole dangerous portion of
We believe the court very properly directed a verdict for defendant, for, first, though plaintiff was uninstructed about the particular danger which befell him, it was open and obvious and known as well to him as to the foreman or any other person, for that matter; and, second, if the place in which he performed his duty contributed to his hurt, the one was selected by his own choice and the other entailed by his own careless conduct. Plaintiff is a man more than thirty years of age and appears to be of usual intelligence. The first two assignments of negligence above quoted relate entirely to an omission of duty on the part of the foreman in setting plaintiff, an inexperienced workman, to operating the machine without instruction as to its dangers. It appears from plaintiff’s own testimony that the foreman did instruct him as to the dangers which inhered in the chain near the floor on the west side of the machine, and the others pertaining to its operation were perfectly open and obvious to any one. The knives of the machine were all covered and except for the chain, which in a measure was concealed by being near the floor, it appeared to present no dangerous feature other than that which inflicted plaintiff’s injury. That danger was perfectly obvious to any one. The foreman demonstrated to plaintiff how to adjust the screw and how that portion of the machine should be operated. It is clear enough that one was not required to get his arm between the moving screw-arm and the iron horns as
But it is urged that plaintiff’s multitudinous duties together Avith the constant watch he was required to keep of the moving chain near the floor on the west side of the machine and the small place in which he was required to work all contributed to support the charge of negligence on the part of the master in placing him, an inexperienced man, in charge of such án appliance without more definite instructions as to its danger. Though plaintiff detailed his several duties in testimony, he made no suggestion whatever that they and the proximity of the moving chain to the place he was standing-contributed to his hurt as though they tended to disconcert him. Ingenious counsel put these matters forward, however, in.the argument but, after all, in the last analysis it is reduced to the point that the master was negligent in failing to instruct plaintiff about the danger which he kneAv and about which an instruction would have been a superfluity. '
By the third and fourth specifications of negligence, the master is charged with having been remiss in his duty, too, when it required plaintiff, an inexperienced person, to operate the machine when the same was dangerous and unsafe and in requiring him to operate it in a position and place Avhich rendered the operation unsafe and dangerous. As before stated, there was nothing whatever about the machine that was dangerous other than the chain, which in, no manner contributed to the hurt, and the particular portion on which plaintiff was injured. As to the chain, plaintiff was warned, and the other was as open and obvious as a blazing fire. The ma-. chine was simple enough and no more dangerous than any ordinary, simple machine if operated with due care by those.in charge. We understand the proof to be directly contrary to the allegation that plaintiff - was re
It is argued, too, that as the foreman hallooed at the plaintiff, just before he was injured, that he was making the loaves of bread too large, this should be considered as negligence on the part of defendant in the circumstances in the case. It may be said of this argument, first, that it is not mentioned in the petition and furthermore plaintiff did not so much as refer to it in his testimony. It came into the case by a remark from one of his witnesses. Plaintiff did not even mention it as a circumstance tending to disconcert him. The mere fact that the foreman hallooed at the plaintiff, as suggested, does not even tend to prove negligence on defendant’s part in the absence of its appearing that it tended to disconcert or excite plaintiff and thus subject him to an extra hazard. [English v. Roberts, Johnson Rand Shoe Co., 145 Mo. App. 439, 122 S. W. 747, and nothing of this kind appears.] If the fact that the foreman hallooed at the plaintiff just before he was injured
The judgment should be affirmed. It is so ordered.