109 Mo. App. 506 | Mo. Ct. App. | 1905
Personal injury case. At the time plaintiff was hurt he was a minor past eighteen years of age and working in the defendant’s shoe factory. He was employed in that factory July 23,1903, and injured on the thirteenth day of the following October; but had worked on the machine that hurt him less than three days before the accident. That machine was for pressing leather. It had two iron rollers, one placed above the other and rolling inwardly, which took hold of pieces of leather fed to them by hand and drew the pieces through, thus smoothing their surfaces. A horizontal table was immediately in front of the two rollers with its inner edge opposite the space between them. Beneath the platform was a coiled spring about a foot in length, and projecting from the lower end of the spring was a bent arm which ended in a flat treadle a foot long and eight inches wide, set nearly horizontally, to be worked by the foot of the operator of the machine. This treadle was intersected by deep grooves a quarter of an inch apart, cut into the upper surface to roughen
The only ground for a verdict in plaintiff’s favor allowed by the instructions was a finding that the condition of the treadle rendered it dangerous to work with, that such condition was known to the defendant, or could have been by care, and that the danger was not known and appreciated by plaintiff, or if known and appreciated, was not so imminent and immediate as under the circumstances in evidence, would deter an ordinarily prudent person of plaintiff’s years and experience from operating the machine. The treadle was said to be in bad order and dangerous, because its surface had been worn so slick by use that the operator’s foot would slip off, thus endangering him. The plaintiff said the top of the treadle “was a good deal worn off and slippery.” He had seen the machine at work several months before he was put to work on it and testified that he knew all about operating it, as doubtless he did, for it was of simple construction and movement, and required hut little study to understand. He said that before the day of the accident, which was the third day he worked on the machine, his foot slipped off the treadle five times or more; twice the first day and three times the second. He said, too, that he knew there was danger of his foot slipping off because of the smoothness of the treadle, and danger of his hand getting caught between the rollers as the result of such a slip; that he knew all those matters after he had tended the
A point is made about the petition in this case in regard to the admission of testimony, so it is necessary to state the negligence charged, and this will best be done by copying from the petition itself:
“Plaintiff further says that said defendant wholly failed and neglected to perform the duties which, as master, it owed to said plaintiff while engaged in its employment as aforesaid, and that defendant’s said negligence consisted in this, to-wit': That when plain*512 tiff’s work was changed as aforesaid, he was not properly instructed as to the operation of the machine at which, as aforesaid, he was newly placed to work; and that defendant failed to give plaintiff such instruction and warning with reference to the dangers of said machine as, in the exercise of reasonable care, defendant should, under the circumstances stated aforesaid, have ■given to a person of plaintiff’s youthfulness and inexperience ; and in this, to-wit; that said machine at which plaintiff was last placed to work, as aforesaid, was not in a reasonably safe condition; and also in this, to-wit; that such fenders and safeguards were not provided for and attached to said machine as defendant, in the exercise of reasonable care, should have provided for screening and protecting the gearing and shafting of said machine at which it employed a person of plaintiff’s youthfulness and inexperience.
“As a direct result of the premises and of defendant’s negligence as aforesaid, on or about the 13th day of October, 1903, while plaintiff was engaged in the performance of his aforesaid duties and work at and about said machine, used for pressing and smoothing leather, as aforesaid, plaintiff slipped and fell and his left hand and arm were caught between the iron rollers of said machine and his said arm and hand terribly crushed, bruised, torn and lacerated.”
A verdict for the plaintiff was returned and the defendant appealed.
•No attempt was made to show that the machine by which the plaintiff was injured ought to have been screened or guarded, and the cause of action based on failure to safeguard it was abandoned practically, if not formally.
The plaintiff needed no instruction regarding the operation of the machine, as he already possessed full knowledge of how to operate it, and so testified. The mode of working it was very simple and could be as well understood by a brief observation as a long one.
The point to be first considered is whether the petition states a cause of action based on a defective treadle, the defendant’s counsel insisting that it does not. Their contention regarding the petition is that it counts on but two negligent acts or omissions of duty by the defendant; first, failure to give the plaintiff such instruction concerning the operation of the machine and warning of the dangers incident thereto, as, in the exercise of reasonable care, and in view of his youth and inexperience, should have been given; second, failure to provide such fenders and safeguards to screen the shafting and gearing of the machine as reasonable care for the plaintiff’s safety required. It is true those omissions of duty are distinctly alleged and probably they were the grounds on which a recovery was expected when the action was brought. But between the averments respecting them this averment occurs: “And in this, to-wit; that said machine on which plaintiff was last placed to work, as aforesaid, was not in a reasonably safe condition.” That allegation is. followed by the one about the failure to provide fenders and safeguards, which is in these words: “And also, in this, to-wit; that such fenders and safeguards were not provided for and attached to said machine as defendant, _ in the exercise of reasonable care, should have provided for screening and protecting the gearing and shafting of said machine, at which it employed a person of plaintiff’s youthfulness and inexperience.” It is argued that the intermediate averment regarding the unsafe condition of the machine ought to be treated, not as a
The court instructed that under the evidence it was not the duty of the defendant to equip the apparatus with screens and fenders and their absence afforded the plaintiff no cause of action. This ruling disposed of the case, both as to the common law and statutory charges of negligence because of the absence of safeguards, leaving no basis for a recovery except defendant’s failure to instruct and warn the plaintiff. We will speak presently of the posture of the case in that
It has been shown the plaintiff needed no instructions about operating the machine, and it is equally plain that he needed no warning about the danger. He swore to comprehending the danger, not only of his hand being crushed if he carelessly put it against the rollers, but of getting it caught between the rollers if his foot slipped from the treadle. Lack of appreciation of the risk can not be imputed to him without disregarding his reiterated assertions that he fully realized the haz
The point is pressed that plaintiff should have been denied a recovery by the court because the imperfection of the treadle was obvious and known, and by continuing to use it he assunled the attendant risk. But there is testimony that the plaintiff complained, or at least told the foreman he had to use pieces of leather on the treadle to prevent his foot slipping off; whereupon, instead of the appliance being repaired, the plaintiff was reproved for the precaution he took. If he had said nothing to the foreman, his assumption of the risk might be urged as a court matter; but as he swore to adopting an expedient to obviate the danger and that he called attention to the fault of the treadle, the question of whether he assumed the risk was not to be taken.from the jury. [Hough v. Railway Co., 100 U. S. 225; Railway v. McDade, 135 U. S. 554; St. Louis Cordage Co. v. Miller, 126 Fed. Rep. 495; Smith v. Baker, L. R. App. Cas. 325; Reichla v. Gruensfelder, 52 Mo. App. 43; Dean v. Woodenware Co., 106 Mo. App. 67, 80 S. W. Rep. 292.]
It is also contended that in continuing to use the treadle the plaintiff was guilty of negligence which contributed to his injury and the court should have thus ruled. Plainly the treadle’s condition did not render using it so imminently perilous that a court can say a prudent boy of plaintiff’s capacity and experience would not have incurred the risk, as it would have to say to defeat him on the ground of contributory negligence. [Adolff v. Columbia, etc., Co., 100 Mo. App. 199, 73 S. W. 321.]
The judgment is reversed and the cause remanded.