Pohlmann v. American Car & Foundry Co.

123 Mo. App. 219 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts). — If we assume, as we think Ave may well do, that defendant was negligent in having the thumb screw project an inch or more from the shaft; that it was negligent in not having the water can fastened securely to the table, so as to avoid the danger of its manipulation by the operator of the machine; and that it was negligent in putting plaintiff, an inexperienced person, at work Avith the machine, without first explaining its parts and operation and instructing him how to use it, the question for decision is, was plaintiff guilty of such contributory negligence as to bar his right of recovery? In the consideration of this question, the testimony offered in the case favorable to plaintiff should be taken as true and every reasonable inference should be drawn therefrom in his favor. [Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467, 61 S. W. 806; Story v. St. Louis Transit Co., 108 Mo. App. 424, 88 S. W. 992; Baxter v. St. Louis Transit Co., 103 Mo. App. 597, 78 S. W. 70; Holman v. Mining & Smelting Co., 102 Mo. App. 423, 76 S. W. 1109.] What evidence is there in plaintiff’s favor beyond the fact that defendant was guilty of negligence? The machine Avas a simple one. The set screw was in plain view when the machine was at rest and its presence was manifested by tbe ring or band, tbe witnesses say, it made around the shaft when in motion so, if plaintiff bad paid tbe least attention be would have seen tbe set screw and appreciated tbe fact that it would, when revolving, take bold of bis glove or sleeve and wind bis arm around tbe shaft. This danger was open and obvious and would have been avoided bad not plaintiff been oblivious to what was before him. As was said by tbe Kansas City Court of Appeals, in Marshall v. Hay Press Co., 69 Mo. App. 1. c. 260, Smith, P. J., writing tbe opinion, “It is now a well-settled rule of law in this State that if tbe defects in tbe appliances are patent, that is to say such as tbe servants would have discovered if ordinarily observant in using them, he becomes chargeable with knowledge of their defective condition and if injured thereby can not recover of tbe master. [Watson v. Coal Co., 52 Mo. App. 366; Flynn v. Bridge Co., 42 Mo. App. 529; Fulger v. Bothe, 117 Mo. 473, 22 S. W. 1113; Aldridge v. Furnace Co., 78 Mo. 559; Keegen v. Kavanaugb, 62 Mo. 232; Hulett v. Railway, 67 Mo. 239; Burns v. Railway, 129 Mo. 41, 31 S. W. 347; Doolin v. Railway, 87 Mo. 545.]” An employee cannot shut bis eyes to an obvious defect in a tool furnished Mm to work with by bis employer and when injured recover, for tbe reason be did not see tbe defect. His eyes were given him to see with, and tbe law requires him to make a reasonable use of tbe sense of sight for bis self-protection; if be fails to do so and an injury results which would not have happened- bad be used ordinary care to observe what was before him, he cannot recover, for tbe plain reason that bad be exercised ordinary care he would not have been injured; in other words, bis own negligence contributed to bis injury.

Plaintiff also testified that be could have stepped to one side of tbe table, out of reach of tbe revolving shaft, to adjust tbe water can. This way would have been absolutely safe. He chose the unsafe way and must bear the consequences of his choice. Plaintiff’s own evidence conclusively shows that his negligence directly contributed to his injury, hence he cannot recover. The judgment is affirmed.

All concur.