Hoepper v. Southern Hotel Co.

Citation44 S.W. 257,142 Mo. 378
CourtMissouri Supreme Court
Decision Date18 January 1898
PartiesHOEPPER v. SOUTHERN HOTEL CO.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Frances Hoepper against the Southern Hotel Company, in which there was a verdict for defendant. From an order granting a new trial, defendant appeals. Affirmed.

A. & J. F. Lee, for appellant. A. R. Taylor, for respondent.

MACFARLANE, J.

This is a suit to recover damages for personal injuries received by plaintiff on account of the alleged negligence of defendant in providing for her use, as an employé, defective and dangerous machinery. The petition charges that "on the 14th day of May, 1892, the plaintiff was in the service of the defendant, running a certain steam clothes wringer; that said machine and appliances thereof were, and had been for a long time prior to said time, in a defective and dangerous condition, as defendant, by its agent having charge of keeping the same in repair, well knew; that the springs and appliances of said machine were worn out and loose, whereby said appliance ran rough and jerked; that on said day, while plaintiff was in the discharge of the duty of her employment, adjusting clothes in said wringer, owing to said defective condition of said machine, the rim of the wringer was caused to strike plaintiff's right arm at the elbow with great force, whereby plaintiff's arm was fractured, and muscles and sinews of said arm greatly contused and lacerated, so that her right hand and fingers thereof are drawn out of shape and greatly injured; that defendant was negligent in furnishing said appliances in said defective condition to plaintiff to work with in the discharge of her said employment." Judgment for $10,000 is demanded. By its answer, defendant denies these charges, and avers affirmatively that plaintiff's injuries were caused by her own negligence directly contributing thereto. The wringing machine with which plaintiff was employed to work was run by steam power. The evidence tends to prove that for some time the machine had been so out of repair and worn that the appliance into which the clothes were placed ran "roughly and jerked," by reason of which the clothes, placed therein for drying, did not always remain in proper position, and required adjustment. In order to adjust the clothes when thrown out of place it was necessary for the operator to put her hand into the basket, as it was called, which contained the clothes. While in operation, this basket revolved rapidly, but smoothly and regularly, when in proper order. When out of order, it ran roughly and jerked. The machine could be easily stopped, and the evidence tends to prove that plaintiff had been instructed never to put her hand into the basket while it was in motion. Plaintiff denied that she had such instructions. Plaintiff knew that the machine was out of order, and the evidence tends to prove that defendant's forewoman, who had charge of the business, also knew its condition, and knew that plaintiff continued to work thereat. Several attempts were made to repair the machine while plaintiff was using it. On the morning of the 14th of May, 1892, while plaintiff was operating the machine, the clothes got out of place; and, while the machine was in operation, plaintiff put her hand in the basket, in order to put the clothes in place, and her arm was struck by the rim of the basket, and was thereby injured. The evidence tended to prove that the injury was occasioned by the sudden jerking of the basket, caused by the said defects in the machine.

At the request of defendant, the court gave the jury a number of instructions, of which 1, 2, 6, and 10 are as follows: "(1) The court instructs you that an employé, in entering upon service, takes upon herself the ordinary risks and dangers of her employment, and that, if the injury in this case is simply the result of such dangers and risks, your verdict must be for the defendant. The court further instructs you that an employer does not guaranty or in any way insure the safety of its employés, and that the defendant in this case did not guaranty or insure the safety of the plaintiff, Frances Hoepper, at the work at which she was engaged when injured, and that the only fault for which you can hold it liable, if you hold it liable at all, is for the want of ordinary care in permitting the wringer to run `rough and jerk.' No other defect in the wringer, if any such you find, can be considered by you, except such defect as caused it to run roughly and jerk. It is immaterial that said wringer did run roughly and jerk unless you find from the evidence that its so running roughly and jerking was the direct cause of the injuries received by plaintiff. The mere fact alone, if such you find from the evidence to be the case, that the injuries could not have been received by plaintiff unless the wringer did run roughly and jerk, is no ground for finding a verdict against the defendant; but, to authorize a verdict against the defendant, it will be necessary for you to find that its so running roughly and jerking was the proximate cause of plaintiff's injuries, and that its so running roughly and jerking was negligence upon defendant's part, as defined in the instructions in this case; and even if you find that its so running roughly and jerking was negligence upon the part of the defendant, as defined in the instructions in this case, your verdict must be for the defendant, unless you find that its so running roughly and jerking, as distinguished from the proper and regular motion of said machine, free from negligence, was the direct cause of the injuries received by plaintiff. If you find from the evidence that the injuries received by plaintiff were directly due to the regular and proper running of the machine, without any want of ordinary care in this respect upon the part of the defendant, your verdict must be for the defendant. If you find from the evidence that the injuries which plaintiff received were directly contributed to by want of ordinary care on her part, or would have been avoided by the exercise of ordinary care on her part, in either event your verdict must be for the defendant. If you find from the evidence that the injuries were caused by the concurrent negligence of plaintiff and defendant, your verdict must be for the defendant. If you find from the evidence that the injuries received were the result of mere accident or misadventure, your verdict must be for the defendant. If you find from the evidence that the wringer did run roughly and jerk, and that its running roughly and jerking caused the injuries received by the plaintiff, Frances Hoepper, but do not find from the evidence that the defendant or some forewoman or officer of defendant, or...

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