141 Mo. App. 428 | Mo. Ct. App. | 1910
This is an action for negligence. Trial by jury and. a verdict for plaintiff for $8500. On bearing of motion for a new trial, tbe court held tbe verdict excessive and ordered a remittitur of $3500, as a condition to overruling tbe motion. Then plaintiff voluntarily filed a remittitur of $4000, tbe motion was overruled and judgment rendered for plaintiff in tbe sum of $4500. Defendant appealed.
Tbe injury occurred April 29, 1907, in tbe press room of tbe newspaper plant owned and operated by defendant in Kansas City. Six large printing presses of latest type and of best construction were stationed in this room. Tbe presses were run by electricity and were equipped with push buttons for tbe use of tbe operator in applying, stopping and regulating tbe power. One of these presses, known as No. 4, is tbe object of present concern. Plaintiff bad been employed by defendant some six years and, at tbe time of bis injury, was working at that press in tbe capacity of “first assistant tension man.” His duties, as stated by bim, were “to help lead tbe sheet through, watch tbe rollers, change tbe muslin, and put on tbe blankets and help lock up tbe rollers, sometimes we done that, and start and stop tbe machine, and when tbe press was continually running we bad to run tbe tension, that was tbe most particular thing in my position.”
When a roll of white paper was set in its place, a “lead” bad to be started by running tbe end of tbe roll over a prescribed course through tbe machine'. And after tbe lead was started tbe “tension” of tbe machine* bad to be watched and regulated in order that tbe lead or paper ribbon would run through without breaking. Either on account of some defect in the paper or on account of tbe “tension” being too tight, tbe paper occasionally would break and wrap around a roller. When this occurred, tbe machine bad to be stopped, tbe roller cleaned of tbe clogging paper and a new lead started.
It was tbe duty of plaintiff to perform this task
The press was eighteen or twenty feet long,. eleven feet high, and nine feet wide. It had eight sets or “stations” of push buttons, each station consisting of five buttons. The stations, each 4x8 inches in size, were placed about the machine at the most convenient places for the operators. One button would start the machine gradually, another more rapidly, another would stop it quickly, and so on. One of the buttons, called the “safety,” when set would lock the machine so that it would not respond to the action of any other button until the safety was released. The evidence of plaintiff is to the effect that he pushed a stop button, that the press came to a full stop before he began the work of cleaning the roller, that he set the safety button and that neither he nor any one else pushed any other button before the machine jumped and hurt him. Further, it appears that in the “jump” the rollers only moved eight or ten inches, that it would be impossible to move them so slightly by the use of the buttons; that the machine had been observed by other workmen to jump when the power was shut off and the safety set; that complaint had been made to the foreman and that the electrician had tinkered with the “stations” without remedial results.
In attempting to account for the injury, one of defendant’s witnesses said: “He may have reached to put the safety in and pressed the wrong button.
In tbe posture of tbe case presented by the demurrer to tbe evidence, we must give full credit to tbe evidence of plaintiff, which shows that the press bad stopped and the safety was set before be thrust bis hand into tbe place where it was caught; that bis body was too far from a station to make tbe inference that he accidentally touched a. • button anything but tbe most remote conjecture, and that nobody did touch any of tbe buttons.
Tbe petition alleges that “Plaintiff was employed by defendant as a pressman” and that while be “was working on said press, tbe paper became caught between said rollers or cylinders and began to wrap around tbe same. That said pressman in charge of said press and under whom this plaintiff was at tbe time working, stopped said press and plaintiff started to tear away said paper. That while plaintiff was attempting to tear away said paper, said press suddenly started up, although none of said buttons bad been pushed,” etc.
The first point advanced in tbe argument of tbe
We do not agree with defendant that the verdict finding negligence of defendant to have been the proximate cause of the injury must rest on conjecture and speculation. To the contrary, we find the evidence of plaintiff points directly and unequivocally to negligence. Obviously, the machine could not start without electricity. If plaintiff and his witnesses are to be believed (and we see no reason for discarding their testimony), the machine gave an eccentric and very brief start at a time when the buttons were pushed to. shut off the power entirely. Such occurrence could result only from a slight and momentary short circuit caused by some defect in the appliance for control of the power. The rule is well settled that where the evidence of plaintiff discloses that the injury might have resulted from one of two or more causes and that some of such causes were disassociated from the neg
Further, it is contended that as the press was of standard make and of high quality and was inspected daily, defendant must be held to have discharged his full duty to plaintiff and cannot be held liable for negligence in failing to discover a latent defect. It sufficiently answers that argument to say that knowledge of defendant, either actual or constructive, that the machine was defective would deprive him of the right to rely on any presumption and would impose on him the duty to use reasonable care to remedy the defect. Moreover, the defect depicted by the evidence of plaintiff was not latent. True, the mechanism of the appliance controlling the power was hidden and it could not be told except by expert examination just what was causing the occasional short circuit, but the existence ‘of a short circuit proclaimed in no uncertain manner the presence of a defect and was enough, of itself, to impel.an ordinarily careful and prudent person in the situation of defendant to take' prompt steps to discover and repair the specific defect. Referring to the contention that defendant did all he could do
Point is made that this court has no jurisdiction of the appeal since the amount of the verdict was in excess of our jurisdiction and plaintiff could not change the appellate forum by a voluntary remittitur. The point must be ruled against defendant. The appeal is prosecuted from the judgment, not the verdict, and the judgment was for $4500, an amount then and now Avithin our jurisdiction.
Finally, it is argued that the judgment is still excessive and that the size of the verdict denotes passion or prejudice on the part of the jury. Plaintiff is a young man. The injury maimed his right hand and left it permanently impaired. One of the fingers was torn aAvay beloAV the last joint, another was amputated at the second joint; another was so mashed it always will be disfigured .and stiff. At least one-half the strength of the right arm is lost. In addition to his regular employment, plaintiff played musical instruments as an avocation and thereby added materially to his income. Considering the age and earning capacity of plaintiff at the time of his injury, the serious and lasting impairment of his usefulness; his disfigurement and the pain, suffering and humiliation he has endured and will suffer, we do not feel justified in saying that the judgment is excessive. In Phippin v. Railroad, 196 Mo. 321, the plaintiff lost all the digits of his night hand except the thumb. The Supreme Court ordered a remittitur of $3000 from a verdict of $12,000, allowing a judgment to be entered for $9000. The
Finding no substántial error in the record, the judgment is affirmed.