Thein v. Brecht Butchers' Supply Co.
91 S.W. 953
Mo. Ct. App.
1906
Check Treatment
GOODE, J.

(after stating the facts). — This is an action for a personal injury received by the plaintiff in defendant’s factory on November 15, 1901. When hurt, plaintiff was thirteen and one-half years old, well educated for his years, and of good intelligence. The defendant company conducts a manufacturing establishment in St. Louis wherein it makes vessels used in the meat industry, such as lard pails. Plaintiff’s employment in the factory began in July, 1901, and therefore he had worked about four months before he was hurt. His first work was on a machine operated by foot power, which cut wires into lengths suitable for handles to lard pails. He did other work occasionally; cut holes in the pails to receive the handles and bent the ends of the wires into hooks to fit into the holes. Sometime in Au*10gust, the machine by which he was hurt was put into the factory. It was a contrivance for the cutting of wires, operated by electric power instead of by manual or foot power. It was fastened to an upright post and rested on a heavy cross-timber, at a height above the floor which permitted the operator to sit on a stool and feed the wire to it. It received the power which rotated it by means of a shafting and belts. There were two knives on it to cut the wires instead of one knife working like a pair of scissors, which the other machine had. Plaintiff worked on the machine occasionally from the time it was put in until the date of his injury. As the operator sat on the stool in front of the machine, his face was from two to four inches away from the blades. There was testimony showing that as high as 2,500 wires were cut in an hour. It seems the wires were furnished to the operator in bales and the ends had to be cut off. When cut, the ends would fly in all directions and as far as five or ten feet from the machine and would strike the workman on the hands and face so hard as to inflict scratches and sometimes draw blood. The foreman of the shop was in the habit of passing by the machine and knew how it worked and where the ends of the wires would fall. The knives revolved rapidly and with considerable force. The injury on which this action was founded, was due to the end of a wire striking the plaintiff in the eye and hurting it so badly that the sight was destroyed. Such, in substance, is the testimony for the plaintiff as given by many witnesses. The negligence alleged is that the machine was very dangerous, not guarded or screened in any way so as to prevent the wires from hurting the operator, when it might have been screened, and failure to warn the plaintiff of the hazard incident to his work. The defenses were a general denial and a plea of contributory negligence.

A verdict was returned for the plaintiff and a judgment having been entered in accordance with it, the defendant perfected this appeal.

*11It is self-evident that the machine which hurt the plaintiff was highly and unnecessarily dangerous. There was abundant evidence to- prove that immediately after his eye was put out, a simple and inexpensive contrivance was adjusted on the machine which would prevent such an accident from occurring. This was a tin hood or screen, which intercepted the upward movement of the pieces of wire and caused them to fly downwards instead of into the operator’s face. When the case was argued, all the members of the court were of the opinion that there was evidence for the jury and that the defendant’s assignment of error because the trial court refused to direct a verdict in its behalf could not be sustained. Reading the record has confirmed that opinion. This is practically all there is to be considered on the appeal. The plaintiff’s youth made his alleged contributory negligence a question for the jury. In truth, there was nothing to show he was guilty of contributory negligence but the bare fact that he worked on the machine. The argument in this connection is that on the testimony for plaintiff, the risk of injury was so great and apparent that, in common prudence, he ought to have relinquished his employment. Considering the plaintiff’s youth, it was, on any theory of the law of assumption of risk, for the jury to decide whether or not he assumed the risk of injury.

We might add that there is nothing to show the plaintiff realized at all that he was in danger of serious injury. He was an immature boy and probably never thought of a calamity happening to him. The instructions will go with this opinion. We have studied them and think the defendant was fairly treated. No charge asked by it was denied except one in the nature of a demurrer to the evidence for the plaintiff.

The judgment is affirmed.

Bland, P. J., and Nor-tom, J., concur.