Brands v. St. Louis Car Co.

• Decision Date: 14 July 1908
• Citation: 112 S.W. 511,213 Mo. 698
• Parties: BRANDS v. ST. LOUIS CAR CO.
• Court: Missouri Supreme Court

112 S.W. 511

213 Mo. 698

BRANDS v. ST. LOUIS CAR CO.

Supreme Court of Missouri, Division No. 2.

July 14, 1908.

1. MASTER AND SERVANT—OBLIGATION OF MASTER TO FURNISH APPLIANCES.

A master is bound to use reasonable care to furnish his servants safe appliances, but is not bound to furnish any particular appliances, nor the newest and best appliances; his duty being performed when he furnishes those of ordinary character and of reasonable safety.

2. SAME—ASSUMPTION OF RISK—USE OF UNSAFE MACHINERY.

A servant does not assume the risk of danger from the use of unsafe machinery, unless the defects are so obvious that a reasonably prudent person would not attempt to use it.

3. SAME—FURNISHING APPLIANCES—NEGLIGENCE.

No inference of negligence of a master arises from evidence that an appliance furnished was such as is ordinarily used for like purposes by persons engaged in the same kind of business, and negligence cannot be imputed from the employment of machinery in general use.

4. SAME.

A master furnished a straight emery wheel of the character in general use in all manufacturing establishments in the vicinity where he did business. Experts testified that a convex wheel was safer. An expert stated that in an experience of 22 years he had known five wheels to break. Other experts with experiences ranging from 3 to 27 years testified that they had never known an emery wheel to explode, while others knew of one wheel exploding in that time. In the master's shops there were 50 emery wheels in operation, and about 500 were used during a year, and only one had broken prior to the injury to an employé. Held, that the master as a matter of law furnished a safe appliance, and was not negligent for failing to provide a convex wheel.

5. SAME—FAILURE TO WARN SERVANTS—NEGLIGENCE.

Where a master furnishing a straight emery wheel, instead of a convex wheel, furnished a kind of wheel in general use, and there was nothing to show that such kind of wheels was inherently dangerous to employés using them, the master was not negligent in failing to warn an employé of the danger incident to the use of the wheel.

6. SAME.

Where a servant was directed how to operate an emery wheel, and the wheel did not break on account of any misuse thereof by him, the failure of the master to inform him that emery wheels will explode at times did not contribute to the injury caused by the breaking of the wheel.

7. EVIDENCE—OPINION EVIDENCE—EXPERTS— COMPETENCY.

Where a witness testified that emery wheels were made in different ways and out of different ingredients, but did not show any knowledge of the ingredients of a particular kind of emery wheels, or any experience in watching such wheels, it was error to permit him to testify as to the general breakability of all emery wheels.

8. MASTER AND SERVANT—INJURY TO SERVANT —NEGLIGENCE—EVIDENCE—SUFFICIENCY.

Where, in an action for injuries to a servant by the breaking of an emery wheel, an expert testified that in an experience of 22 years he had known two wheels to break, but there was no evidence that the master had knowledge of such explosions, and it appeared that he had been using wheels for 6 years, and only one had exploded, and that, while it was being tested, there was no evidence that the master knew that the wheel which exploded was dangerous.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Otto Brands against the St. Louis Car Company. From a judgment for plaintiff, defendant appeals. Reversed, without remanding.

Seddon & Holland and James R. Van Slyke, for appellant. A. R. Taylor, for respondent.

GANTT, J.

This is an action for the recovery of damages on account of personal injuries sustained by the plaintiff, at that time a minor 19 years old, on the 29th day of May, 1903, by reason of the explosion of an emery wheel while the plaintiff was in the service of the defendant at its factory at 8000 North Broadway in the city of St. Louis. The petition, in substance, alleges: That the defendant is a corporation by virtue of the laws of this state, and was at the time of the said injury engaged in the manufacturing business. That on the 29th of May, 1903, plaintiff, who was then a minor 19 years of age without experience in the use of emery wheels and ignorant of the dangers incident to such use, was required by the defendant's foreman to do certain grinding work upon the emery wheel. That emery wheels when in revolution are inherently apt to break, and when so breaking pieces of the wheel are liable to strike and injure persons working at or near them, on account of which it was necessary, for the reasonable security of defendant's employés working about such wheels, that they should be convex; that is, of a construction of greater thickness at the center than near the rim. That slanting clamps should be adjusted on said wheels to prevent the broken pieces from escaping in case of breakage. That the wheel at which plaintiff was required to work, as aforesaid, was defective and dangerous, in that it was made of uniform thickness, instead of being made thicker at the center, as above described, and in that it was not guarded by slanting clamps. That on the date above mentioned said emery wheel at which plaintiff was required to work broke on account of the said susceptibility of such wheels to break, and a piece of it struck the plaintiff in the head and seriously injured him. The plaintiff was without experience in the work of operating an emery wheel and was ignorant of the dangers and qualities aforesaid, and the defendant's foreman who ordered plaintiff to work at said wheel wholly failed to warn him of the dangers of said work. That defendant was negligent in providing said wheel for said work and in ordering said plaintiff to do said work on said wheel, and was further negligent in failing to warn plaintiff of the said dangers of said work and in failing to instruct him as to said work and the dangers thereof. That on account of the foregoing, plaintiff is damaged in the sum of $15,000. The answer was a general denial and a general plea of contributory negligence. The reply was a general denial. The trial resulted in a verdict for the plaintiff for $5,000, from which in due form the defendant appeals to this court.

It will thus be seen that the petition is based upon three counts of negligence: First, providing to the plaintiff work with an appliance of a defective and dangerous construction; second, that the appliance, to wit, an emery wheel, is inherently dangerous, in that it will explode and break while in use, and that the defendant was negligent in not providing guards to prevent the pieces of the broken wheel from flying and striking and injuring the plaintiff at work; and, third, that said appliance being so dangerous, and the plaintiff being ignorant of the dangers of said appliances and without experience in the use of the same, defendant was guilty in failing to warn him of the said dangers, or to sufficiently instruct him as to the safe manner of its use. The testimony tended to show that, as a result of being struck by a piece of emery wheel that exploded in defendant's plant on the 29th day of May, 1903, plaintiff sustained a fracture of the skull. He was treated by a surgeon, and an operation performed to remove the piece of bone that was depressed. Plaintiff testified that his eyesight was not as good as it was before the accident, and that he had trouble in stooping over or raising weights. Plaintiff testified that he was 19 years of age at the time of the accident, and prior to that time had been living in Illinois, engaged in farm work, and had done some work in a coal mine. On the day prior to his injuries, he went to work for the defendant. He was set by the foreman to do a piece of work on the 12-inch emery wheel, and worked at that about two hours. After that he was put to work at a smaller emery wheel. On the morning of the 29th of May, 1903, plaintiff was put to work on the large 18-inch emery wheel. The foreman showed him how to do the work. Plaintiff worked on this wheel about six hours before it exploded. About 2 o'clock of that day the wheel burst, and a piece of it struck plaintiff over the right eye. The wheel was about two inches thick throughout. The wheel is what was called in the testimony a straight wheel, as contrasted with a convex wheel. On each side of the wheel there was a clamp. At the time the wheel burst, plaintiff was using it in a way in which he had been instructed to use it. Since the accident, and in the summer of 1903, plaintiff began to work as a cager in a coal mine and averaged some seven or eight hours a day and earned about $1.25 per day. Prior to his injury he was receiving $1.75 per day.

Upon the first charge of negligence, to wit, that plaintiff was put to work with a defective and dangerous appliance, the plaintiff called two experts, Harry S. Schott and John Jacob Kerr. Schott testified: That he was an experimental machinist; that he had had experience in using emery wheels for about 23 years; that he did not know the composition or ingredients of emery wheels; that an emery wheel is subjected to different temperatures, and is likely to explode at any time; that this is true of most any kind of emery wheel; that prior to May 29, 1903, there was made an emery wheel that was larger in the center and tapered towards the edge with a slanting clamp on each side; and that these clamps are so constructed as to hold the parts of the wheel in case of a break. On cross-examination he was asked: "Was your knowledge of condition such during those three years that you can tell what was in common usage? Was it in common usage to use a straight wheel in factories in this vicinity, or common usage to use a convex wheel? Ans. There were a great many, I expect you might say in common use, of straight wheels, because the average wheels I expect used in the city were mostly small wheels; but, when it comes to...