Wease v. Fayette R. Plumb Tool Company
| Citation | 173 S.W. 79,187 Mo.App. 716 |
| Parties | ARTHUR A. WEASE, By Next Friend, Respondent, v. FAYETTE R. PLUMB TOOL COMPANY, Appellant |
| Decision Date | 02 February 1915 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.
Judgment reversed and cause remanded.
Igoe & Carroll and Fauntleroy, Cullen & Hay for appellant.
(1) Plaintiff's main instruction assumes disputed facts, is inconsistent and is palpably erroneous. The assumption of facts in the case at bar is much more marked and harmful than the assumption made in the following cases which were reversed because the instruction assumed disputed facts. Ganey v. Kansas City, 168 S.W. 196; Burroughs v Likes, 166 S.W. 643; Neas v. Railroad, 138 Mo.App. 485; Wilson v. St. Joe, 139 Mo.App. 557; Linn v. Bridge Co., 78 Mo.App. 111; Proctor v Sutherland, 162 Mo.App. 641; Clark v. Railroad, 242 Mo. 570; Moon v. Transit Co., 247 Mo. 227. The rule forbids the assumption of disputed facts, whether made directly or indirectly, and the error is not, as a general rule, cured by another portion of the charge which submits the issue to the jury. Cahoon v. Marshall, 25 Cal. 201; Bressler v. Schwertferger, 15 Ill.App. 294; Martin v. American Smelting, Etc., Co., 23 Utah 52; But, see Brinkley Car Works, Etc., Co. v. Cooper, 75 Ark. 325.
Theo. H. Culver for respondent.
--This is a suit for damages on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
It appears plaintiff, a minor about eighteen years of age, was in the employ of defendant at the time of his injury. Defendant is engaged in the manufacture of tools, such as hatchets, axes, etc. Plaintiff received his injury while dressing an emery wheel in defendant's factory. The dresser which plaintiff held in his hand while the emery wheel revolved at high speed became caught by a bump on the emery wheel, because, it is said, the wheel was not set true and wobbled, and crushed three of his fingers. The emery wheel on which plaintiff was engaged at the time is about twenty-six inches in diameter and revolves at great speed, being propelled by the motive power of the factory. Such emery wheel resembles the old-fashioned grindstone and, it is said, becomes worn in use, in that some portions of it are softer than others and thus occasions bumps to develop on the wheel. When bumps so develop on the wheel, it is necessary to dress them down so the surface will be smooth and circular. A dresser is provided to be used for this purpose and it is such a dresser that plaintiff was holding against the wheel at the time. It seems this dresser was caught by a bump on the wheel and lodged against an adjacent bar so as to occasion the injury complained of.
Plaintiff says that, though he had worked at the factory for several months, he had been engaged only two and a half hours on the emery wheel when he was injured, and was not familiar with the particular wheel. The averment of the petition is to the effect that defendant was negligent and remiss in its duty in providing and setting plaintiff to work upon an emery wheel which was not set true and wobbled and ran unevenly. The evidence tends to support the charge that the wheel was not set true, for the witnesses say it wobbled as it revolved and ran more or less unevenly; moreover that, because of this and the uneven surface--that is, the bump on the wheel--plaintiff was injured. However, there is no direct evidence tending to prove why the wheel wobbled or how much it wobbled, and...
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