23 Mo.App. 676 (Mo.App. 1886), Dutzi v. Geisel

Citation:23 Mo.App. 676
Opinion Judge:THOMPSON, J.
Party Name:AUGUST DUTZI, BY NEXT FRIEND, Respondent, v. ANDREW GEISEL, Appellant.
Attorney:KLEIN & FISSE, for the appellant: TAYLOR & POLLARD, for the respondent:
Case Date:December 21, 1886
Court:Court of Appeals of Missouri
 
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Page 676

23 Mo.App. 676 (Mo.App. 1886)

AUGUST DUTZI, BY NEXT FRIEND, Respondent,

v.

ANDREW GEISEL, Appellant.

Court of Appeals of Missouri, St. Louis.

December 21, 1886

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

KLEIN & FISSE, for the appellant: Under evidence showing that the injury and the negligence had no connection the court will direct a verdict for the defendant. Dunn v. Railroad, 21 Mo.App. 188. The master is not an insurer, and he is bound only to ordinary care in providing machinery for his employes. Flynn v. Railroad, 78 Mo. 195; Cagney v. Railroad, 69 Mo. 416; Smith v. Railroad, 69 Mo. 32. " If the person injured was fully aware of the hazard before the accident, or was guilty of negligence himself, he can not recover." Nolan v. Shickle, 3 Mo.App. 300; Deering on Negligence, sect. 201; Woodward Iron Co. v. Jones [Sup. Ct. Ala.] 23 C. L. J. 296. And in such case a judgment for the plaintiff will be reversed in the appellate court. Lenix v. Railroad, 76 Mo. 86; Cagney v. Railroad, 69 Mo. 416, 424; Price v. Railroad, 77 Mo. 508; Dunn v. Railroad, 21 Mo.App. 188.

TAYLOR & POLLARD, for the respondent: The right to hire and discharge employes is not the test as to whether a foreman is a vice-principal. Dowling v. Allen, 74 Mo. 13; Moore v. Railroad, 85 Mo. 593. The true rule now is, that the master is liable for all injuries caused by the negligence of a fellow-servant, when such fellow-servant is empowered with superior authority, and may direct the inferior. Wood on Master and Servant, 86; Granville v. Railroad, 10 F. 711; Ford v. Railroad, 110 Mass. 260; Railroad v. Savally, 36 Ohio St. 221; Laning v. Railroad, 49 N.Y. 521; Filke v. Railroad, 53 N.Y. 459; Cowdon v. Railroad, 78 Mo. 567; Hough v. Railroad, 100 U.S. 213. Notice to a person to whom the master has delegated the duty of providing suitable machinery for employes, is notice to the master. Fuller v. Jewett, 80 N.Y. 46; Maloney v. Locomotive Works, 14 R.I. 204; Pavis v. Railroad, 53 Vt. 84; Fay v. Railroad, 30 Minn. 23; Filke v. Railroad, 53 N.Y. 459; Ford v. Railroad, 110 Mass. 260; Hough v. Railroad, 100 U.S. 213; Cone v. Railroad, 81 N.Y. 206; Railroad v. Kirk, 62 Tex. 227.

OPINION

THOMPSON, J.

This was an action for damages for injuries received by the plaintiff while operating a machine as an employe of the defendant. The plaintiff had a verdict and judgment.

As in most cases of this kind, the stress of the case is the question of the plaintiff's own contributory negligence. The plaintiff, a lad about sixteen years of age, was in the employ of the defendant and was put to work by the defendant's foreman with a machine used for cutting and crimping the caps and bottoms of tin cans. The machine and manner of operating it were exhibited to the jury at the trial. The machine had a broad platform, about three and a half feet from the floor, firmly fixed at an angle of about thirty-five degrees, the highest part being immediately in front of the operator and the slope being to the rear. In the center of this platform is a place where steel dies of various sizes may be adjusted. These dies are raised about three quarters of an inch above the plane of the platform, and firmly fixed thereon. Above the place where the die is so fixed there is a stationary slide supported from the rear of the machine, the bottom of which is about five or six inches from the top of the platform; and in this slide, operating perpendicularly to the lower die, there is a punch supplied with a counterpart of the lower die. When in the operation of the machine, the punch and upper die are brought down, they descend exactly over the lower die, and can not descend anywhere else, or move in any other direction. Attached to the machine at the right of the operator there is a fly-wheel, which is constantly kept in motion by the belt connected with the shafting above it.

The motion of the fly-wheel, however, does not engage the sliding punch until, by a pressure of the foot upon a treadle, a clotch or piece of steel is projected into an opening left on the inside of the fly-wheel near its axle, and as the wheel revolves the clotch engages the sliding punch and brings it down upon the lower die with great power, cutting and turning up the edges of the tin placed on the lower die by the operator, and forming a cover or bottom for a tin can at one stroke. The cover so cut falls automatically to the rear of the machine. The instant the pressure is removed from the treadle the clotch is automatically withdrawn from its position and the fly-wheel revolves without operating the machine again until the sliding punch is again engaged in the same manner as above described. When the sliding punch has made its downward stroke, it immediately ascends and remains suspended, some four inches above the lower die, until it is...

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