*1 220 Missouri Century Colian Shepard, Respondent, Electric Company, a Appellant.* Corporation, Appeals. 5, St. Opinion July Louis Court of filed 1927. Negligence—Servant 1.—Master Injured Unguarded Ma- Servant — — chinery Evidence—Jury damages per- Case. In an action to recover for — injuries by employee sonal an working of defendant sustained while at a machine known was a employer’s negligence as cutter or trimmer in which the alleged machine, as provide employee failure to failure to appliances, negligently ordering employee with suitable field to remove _ revolving’ fingers, shells from th'e end of a shaft with his failure employee danger, to warn evidence reviewed and held to take sufficient jury. the case Instructions—Assuming In Facts —Erroneous. an action to recover 2.— damages injuries by personal employee working at an sustained while a trimmer, a machine known as pieces cutter an instruction which assumed that were to remain on the shells after worked, in the machine at which and that it was not rea- trimmed sonably fingers, safe for to remove shells from the machine with his treating leaving and established and not held error as such facts as settled to find whether or not such facts existed. free Machinery Unguarded 3.—Same—Master —Statute—Instruc- Servant — Safely Directing Finding Machine Could be Verdict for tion Servant injuries personal employee an sus- an action Guarded —Error. tained trimmer, working a a machine as cutter while at known directing injured, a having verdict for caught an in the machine and dangerous plain- finding machine was engaged and that defendant duties he was tiff when operation interfering safely guard and with its the machine without injured, failure, plaintiff held er- that as a direct result of imposing upon 1919, 6786, Revised Statutes view of section roneous in change its duty a- so to structure as matter of law the defendant to relieve the device as thereto such or attach do with- if was at the machine performance of service practical operation machine. out Injured Unguarded Negligence—Servant Ma- 4.—Master chinery Statute—Application. section — Servant — contemplated guard a machine as To — employer, duty imposed 1919, 6786, Revised Statutes em- defense between shield in the nature place device some perform- in the protect him from danger, so as ployee and require him, does not required but the statute service of some ance attaching of or the change structure of making such a performance employee from the relieve will device thereto such of the required of him. service 90; 39CJ, 412, p. p. Servant, p. n. Juris-Cyc. Master *!Corpus References: 87; 1222, 78; p. 1168, n. 1167, p. n. p. 1151, n. 42; p. n. n. 38Cyc, p. Trial, n. 1234, n. Rob- Louis.—Hon. City of St. Court the Circuit Appeal from Judge. Hall, ert W. Shepard Electric Reversed remanded.

Holland, Rutledge & Gentry Watts & Lashly appellant.

(1) The overruling court erred in to the demurrer the evidence at the close of the entire The should have been sus- ease. demurrer proof tained there was the because a total failure of of each one of grounds negligence of alleged plaintiff’s petition pages 5 and on grounds alleged, (a) were all no to the There was evidence support allegation guard, plaintiff’s of failure to evidence tended to show that it was not to changed constructed,

now but that its and a knock- structure could put in, out could be then a would not be needed. Such and negligence in support allegation did to of vio- evidence not tend lating guarding Phillips F., A. C. 274 W. statute. v. & 382, 399; Co., v. 236 v. Merc. 266 S. W. Railroad, Stid Mo. Courter (b) allegation negligently failing to furnish a stick The of or knock appliance with which to the finished shells theory that had actual entirely machine ivas defendant based likely scraps to at- notice of metal were remain constructive fingers catch trimmed, tached to a was to field shell that allegation. operator. See was no to sustain There evidence ordering the allegation negligently authorities, 1, (a), (c) upon plaintiff fingers to the shells based use his to remove support See au- tend it. theory, same evidence did not to allegation failing warn thorities, (a), (d) negligently 1 to danger using fingers remove shells was plaintiff his to notice of upon of actual constructive based the same idea clinging to the shells that scraps likelihood of of metal lack of evidence trimmed, allegation also because of failed No. instruction (2) (a) to it. The court erred in this instruc- request plaintiff. 1 two errors There are at the knew defendant jury find that the First, permitted the tion. pieces of known ordinary care have the exercise of after the field shells upon some of scrap likely metal to remain were reasonably safe that it was

they had been trimmed and fingers the shells to remove plaintiff reason use ordered the knowledge negligently defendant with that injury. There caused fingers purpose for that use per- instruction portion base that evidence on which to no knowledge defend- mitting jury find or constructive actual er- instruction therefore, danger, and, part ant’s of such Ellison, v. ex rel. State Dunham, 208 S. ~W. roneous. Boles Co., 271 S. W. & T. Kuhlong L. 195 S. W. Mo. submit wholly failed (Mo. Sup.). This Second. question as a fact whether or not likely were to remain some of said field reasonably been trimmed it was not safe for whether fingers revolving to use his remove field shells account, merely on that those but assumed the existence of required knowledge to find that the defendant had thereof knowledge by or would have had such the exercise of care knowledge negligently and with such ordered the to use his fingers Therefore, this remove shells. instruction violated plaintiff’s the rule that facts material to case must not be assumed given request. undoubtedly plaintiff’s true an instruction at likely scraps assumed the fact that of metal to remain were injured to the shells when cut and that to be there- by, although though admitted, such facts even there was prove tending assumption evidence them. Such of facts expressly following such instructions has condemned in *3 785; Inc., 783, Ry. 287 Rey Plumb, Co., cases: v. S. W. Boland v. 284 141, 144; Co., 43, 47; S. W.' v. Inv. 236 W. Reel S.- Roman v. King, 161; Ganey (b) 233 W. 259 C., 654, S. v. K. Mo. 663-4. The request 2 plaintiff. court erred in instruction No. at the portion There was no evidence on which to base the instruc- permitted jury possible tion which to find that it was for the de- safely securely guard interfering fendant to the machine without practical operation thereof, by plain- with the the evidence offered tending apply guard tiff to show that it was not such a practical interfering operation but without changed that a the structure of the machine could be so wholly necessary, would not insufficient to be evidence by finding that the machine be could 2 securely guarded. authorities, (a), (1). See Friday respondent. T. Jesse

(1) general properly A demurrer to the evidence was overruled petition, alleges assignments negligence, where the several Wagner tending prove there was some of them. Morris v. evidence 430; Mfg. 424; 210 W. Co., Prior, Elec. 243 W. Torrance v. S. S. Shapiro Surety 502; Leahy Winkle, Y., v. N. 259 S. W. v. Am. Co. of (2) passing evidence, 251 S. W. 482. on a demurrer to the respondent every is entitled reasonable inference that to the benefit of intelligence might ordinary legitimately fair-minded draw 630; 231 S. Burtch v. Holman, the evidence. Burton v. W. 425; Ry. Co., 338; Keppler Wells, 236 v. 238 S. W. Wabash S. W. 269 834; Howey Cole, White, Anderson v. 235 S. W. Co. v. J. 955; Karages 1100; v. Ry. Co., S. W. v. Union Pac. 232 W. Moffatt S. ' Si-iepard Electric v. 1155 Link, (3) 229 836. guarding highly S. AV. statute is remedial liberally construed and must be so as to effectuate the true intent meaning City 709; Austin v. Co., thereof. Bluff Shoe 158 S. AV. y. Co., (4) North Am. Lead 240 statute, Cole Mo. 247. Under the guarding prescribed. particular question method of is is guarded whether the machine without “guard” operation To provide thereof. machine is to any device, designed “guard;” is,

with a fixture or attachment against injury protect or secure from it. Simon St. Louis Brass v. 74; Mfg. Co., 70, 298 250 S. AV. 261 Burkhart, Stovall v. S. AV. Mo. 936; Laughlin, 38, (5) v. 168 79 E. Bressler Ind. N. 1033. Inac- against by machinery guarded tion master for in accord- requiring guarding machinery, ance with no defense statute engaged in other manufacturers the same line of busi- to show that wrongful machines, did their for mere custom will ness City Bluff 158 AV. Co., the defendant. Austin v. Shoe S. not excuse (6) requires jury to defend- Instruction which find “that known, care could have knew, ant the exercise of certain n exist, but, existed” does not assume those facts to McMillan v. effect, requires jury to find that such facts do exist. Packing 217 Montgomery Co., Hammond 835; 234 v. Bauseh, S:.AV. 583; Brady 109 Co., Louis Transit S. AV. S. AV. Davidson v. St. 138 978; Geary Railroad, 102 AV. Co., 206 v. Railroad Mo. Ex- AVells,263 Evans v. General 251; Van Leer v. S. AM Mo. 253 364; Steigleder Lonsdale, plosives Co., Mo. S. AV. Co., S. AV.1045. Heman Constr. S. AV. Henderson v. damages personal

SUTTON, an action recover C.—This is employ of defendant injuries received *4 The cause was Louis. manufacturing plant in the of St. city at its judg- a verdict resulting dn court, and a jury, tried before the de- judgment the $1500, from which plaintiff for in favor of ment appeals. fendant working injuries which he sues while sustained the

Plaintiff machine con- The trimmer. a cutter or a machine known at other, and rested on shafts, above the one iron solid of two sisted foot provided with a It was it was bolted. which to pedestal a machine. operator front stood The lever. hand treadle cups, metal called trimming cutting or used was machine The a circular cutter. with provided shaft ivas upper The shells. field arbor, upon with provided was lower shaft the of left end The The placed. trimmed were cut or to field shells cups which on the pressed down arbor, a shell placing operator, upper shaft brought down thus lever hand treadle foot with contact come in cutter circular where point a to Appear Reports. the shell. operated by power. The machine The was electrical continuously. shafts revolved placed on the arbor shells were operator and removed therefrom At the with his left hand. injured time from attempting he to remove a shell the arbor after trimmed. the shell was There remained to the shell after piece it was trimmed metal which scrap of attempting entirely cutter failed cut the shell. In to so shell, plaintiff’s finger caught by piece 'index to remove the scrap remaining shell, of metal so attached to the revolving shafts, between drawn part petition assigns negligence on the of defendant negligently failing and secure- respects: (1) to following ly machine; (2) negligently failing provide plain- guard the knock, appliance push, with or take the plaintiff tiff with a suitable arbor; (3) negligently ordering field shells revolving shaft with his field from the end of the remove the shells failing negligently to warn the of fingers; (4) fingers re- remove the field shells from the danger using his of volving shaft. denial, coupled pleas assumption with general is a

The answer contributory negligence. risk day November, the 6th that on or about Plaintiff testified of the defendant certain employ operating he was defendant or- punch press, said day as a and that on known machine known as operate the directed dered and trimming cer- edges of trimmer, purpose cutter, previously shells; field that he had cups, known tain man, s.et-up from whom machine; foreman, or that his operated this operate machine, and also him this orders, directed he received take shells and how him cut or trim these field how to showed shells these field machine; the foreman took off of them cut, the index machine after off of the and the field hand, the shafts left of his thumb to the revolved; that in obedience the lower the arbor of operate plaintiff proceeded to him, given and directions orders there operated the same that he during the time machine; that metal had not scrap the shells from which or four three scrap piece metal attached leaving a off, cut entirely of said the cutter receiving the time shell; at three metal, about so that cut off all machine failed shell, there attached to the remained scrap metal still inches of place, at the been uncut inch that had of an quarter being about *5 machine shell; that said joined the scrap metal where remove the shell attempted to and while operation, inwas of his left finger thumb and index the shaft, with lower Shepard Electric hand, as he been had ordered do, and instructed to piece -of remaining metal so canght to the shell index finger hand, his left and it to between caused be drawn the two revolving shafts, which were one-quarter apart, about of an inch and injured; caused the severely to be the cir- that cular knife or cutter was about two and or three one-half inches in diameter; that the shell was about three -and one-half four and deep diameter; inches about three and one-half or four inches.in placed that the shell was over the arbor the end on of the lower shaft; that the thickness óf the of the shell was about one- inch; given any .appliance sixteenth of an that was not after, with which to knock remove it the shell from arbor cut; guards upon that were no machine, except there a piece resembling shoe, of metal the sole of a which was placed knife, cutter, upper above front of the circular shaft, purpose keeping splashing oil from the face of in. n operator. expert mechanic, he Ross, G-.A. master testified that examined n question, the machine in and that there was no guard prevent operator, .as sus- or accident securely guard the tained, and that it was taking off prevent injury operator to the machine so as to practical operation the ma- shells without way ; supply said machine .be chine that the would bolt, made hollow knockout, is, be that the lower could bolt, therein, inserted would known as knockout that arbor on the end of lower shell from the automatically knock the .the cut; equip that in order to ma- shaft, when the shell to take device, necessary it would be chine a knockout with amount, -would not construction that their but machine much. defendant, tended show the evidence part On any one keep nature of a protection

there was a belt on coming in contact with that there was in the machine so concealed parts them; it was a Bliss coming in contact with any danger of one in which -of type condition exactly in the .that machine shops catalogues -used tin advertised is machine metal, and was of sheet articles they manufactured where places kind guard of any further that a purpose; use general .machine, operation .the interfere would take the operator could it; that the necessity for nowas there shell; that it underneath hand holding his simply off shell drop right it would off shaft so lower loosely on very fits cut ther.ej.that the put hand soon just as *6 1158 different sized shells; that if the shells cut on the varied in

length, it would not be knockout, to have a for a. sep- then arate knockout would have arranged to be particular shell, each adjustment entire machine would have changed; to be that to equip knockout, machine with a necessary to remove the lower put shaft and in another its stead, the lower shaft on the machine too being small to out; be hollowed that sole purpose of the machine simply to take the place.of the tinner’s shears. assigns

Defendant (1) upon error here the refusal of its demurrer the evidence, (2) upon plaintiff’s instruction No. (3) upon plaintiff’s the giving of instruction No. 2. The evidence, light in viewed most plaintiff, favorable to allowing every inference which a ordinary fair-minded in telligence might legitimately therefrom, draw was sufficient to take case the jury. Ry. v. (Mo.), Wabash Co. 236 S. [Burtch 338; Holman, W. Burton v. 288 Mo. 630; Keppler W. S. v. 231 (Mo.), 425; (Mo. Wells S. W. Anderson App.), v. White 235 S. (Mo. Howey W. W. J. App.), Co. v. Cole 269 S. W. Kara gas v. (Mo. App.), Union Pacific R. Co. W. Moffatt v. (Mo. App.), Link 229 S. W. 836.] No. 1

Plaintiff’s instruction directs a verdict for if the that defendant ordered find and directed use his fingers remove in the field mentioned from shells the evidence or roll the machine lower shaft while or revolved, shafts rolls cut, after had trimmed or in the shells been obedience such plaintiff attempted order and direction to remove field shell plain- from the shaft or roll of the so engaged by caught scrap a piece remaining tiff’s metal shell, plaintiff’s finger field drawn between revolving and injured, or shafts rolls that before defendant gave plaintiff by said and direction the defendant order knew or ordinary scrap the exercise of care could have known that likely they shells, metal remain some of the were field after cut, by or knew trimmed defend^t care could have known that was reason- exercise of fingers shells safe use remove field ably roll, fingers revolving doing and that' caught by piece scrap metal to be and drawn likely were revolving shafts rolls .between assignment of this the in- urges

The defendant pieces of were to remain struction assumes trimmed, and that it was reason- fingers. the shells with to remove has ably safe an instruction issue. to assume held error always been Shepard Electric v. .unquestionably here instruction assumes such An in- facts. struction almost identical with this held erroneous court Foundry Co., this in Gebhardt American Car & decided at present So, too, a term. similar instruction held erroneous Fayette Rey (Mo. Plumb, App.), this court Inc. R. 287 S. urges argument Plaintiff instruction does not *7 that assume metal were remain attached they to the shells trimmed, it was not rea- sonably fingers, safe for remove the with plaintiff to shells his since have jury could not defendant knew found facts unless such question. found the facts to exist. This is beside the vice of the is that treats instruction as settled and estab- these lished, and not leave the free find jury does whether or not these facts existed. In effect it these jury exist, tells facts do only question and that the concerned as to are whether knowledge, constructive, or not the defendant had actual or of the words, existence of facts. In' these the instruction assumes these the existence of facts. upon for plaintiff

Plaintiff’s directs a instruction No. verdict plaintiff work- finding machine at which dangerous plaintiff engaged he was his ing was while securely safely duties, that for defendant to it was practical opera- without safely securely guard thereof, failed to defendant tion machine, direct result of such failure plaintiff that as a this in- assignment its of error Defendant bases wholly evidence is insufficient ground that the struction, on the ¿he been machine could have finding jury that the support meaning the statute. guarded, securely within 1919) provides as follows: (Sec. R. S. The statute machines, machinery, gearing and shafting, drums “The belting, in this establishments and other manufacturing, mechanical in all employed there- dangerous persons as placed so State, when ordinary duties, shall be in their engaged- in or thereabout th,en possible; possible, if not- guarded when securely safely and establish- conspicuously posted danger shall be of its notice ’’ ments. have been machine could contention support of meaning statute, within securely guarded safely expert to the effect testimony witness relies on plaintiff lower shaft placed have bolt knockout arbor, from the knocked the shells automatically have would which removing the shells with necessity of of the relieve so as guard. To semblance of device no in this see We fingers. can guard a machine contemplated by place is to statute some device the nature of a shield or employee defense between the danger, protect so as him from injury performance while in the to. of some required service of him. change is not to make such a in the machine; structure of the or to attach such a thereto, device as will employee relieve the performance from the of the service required of him. Laughlin, Ind. McIntosh v. [Bessler Saw Phoenix, Mill 49 Wash. In this case the 152.] required, performance of his duty, place the field the shaft and remove them fingers. therefrom with his Any con- protected trivance have or shielded him from performance service would constitute a within contemplation statute, change but a in the structure of machine, attaching or the device, thereto of a to relieve the performance from the that service, any is not sense a guarding of the machine. complained of im- poses upon duty the defendant the aas. matter of change law to so structure of its device, or attach thereto such as to performance relieve of removing service *8 the shells from the arbor with fingers, possible it if was do interfering practical operation so without with the of the machine. interpretation Such an duty statute would make it the of in manufacturer all cases equip to so construct and its machines machinery safety employees and as to insure the of its when possible practical operation to do so without thereof, or, words, only in machinery to use the safest machines and that it skill is for human to devise. If the statute were read, intended to be have been manifestly would so written. Mfg. Plaintiff relies on Simon v. Louis (Mo.), St. Brass Co. Mfg. (Mo. S. W. and Stovall v. Burkart App.), F. Co. 261 W. 936, in support of his view.' operator

In the Simon case the of a .stamping was re- quired place material on the lower die of the machine with his upper die, underneath the which descended hand tomatically and ascended au- operation, machine was in while the and it was held operator upper warn the that the descending a die was device underneath push his hand from the die if he did re- and to not contact, it himself time to avoid was move a within the It observed the statute. will be that the meaning of device operator performing relieve the from case service of did hand, dies with his merely material between the but placing the performance him in the of protected and service. shielded case, performance was In the Stovall unguarded pulley an slipped from which duties, a belt caused pulley, larger a and slip from was thereby another belt y. Awning Durham Morrison Tent and flange drawn into the and There machinery only one was pulley, inside, small was on the and reason the slipped prac- belt pulley. entirely off the It that it shown put flange tical pulley, and that if that the outside prevented slipping the belt would have been done flange pulley. off of the It held such within meaning of the statute. plaintiff's these afford is obvious cases view. judgment circuit Commissioner recommends and cause be reversed remanded.

court opinion C., adopted foregoing PER CURIAM:—The Sutton, judgment of opinion the court. The the circuit court is as the Danes, accordingly J., reversed the cause remanded. P. Nipper, JJ.,

Becker concur. Opal Friend, Her Next Durham, Durham, Respondent, James App Awning Company, Corporation, Tent Morrison ellant.* July Appeals. Opinion filed Court of

St. Louis Negligence—Ordinances—Evidence—Instructions—-Instruction With- 1.— Assignment Negligence Violating drawing Not Introduced Ordinance plaintiff pleads re- re- an ordinance Where in Evidence Refused —Error. lies quests evidence, upon it, defendant does not introduce withdrawing assignment form, instruction, correct given. jury, negligence it should be judicial take do Notice. Courts 2.—Evidence—Ordinances—Judicial ordinances, must be and contents their existence municipal notice rely litigant expects established, party if are proven them. as other *9 79; Trial, 23CJ, p. Evidence, n. Juris-Cyc. References: *Corpus 38Cye, p. n. St. Louis.—Hon. Robt. City of Court Circuit Appeal Judge. Hall, and remanded. Reversed appellant. Sibley & Leonard, McRoberts

Banister, defend- jury and for the case make out failed (1) Plaintiff should evidence to the demurrers nature instructions ant’s