Adolff v. Columbia Pretzel & Baking Company
| Decision Date | 17 March 1903 |
| Citation | 73 S.W. 321,100 Mo.App. 199 |
| Parties | LENA ADOLFF, Respondent, v. COLUMBIA PRETZEL & BAKING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court.--Hon. Wm. Zachritz, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Jones Jones & Hocker and C. P. Ellerbe, Jr., for appellant.
(1) The court erred in refusing to sustain a demurrer to the evidence by refusing to give a peremptory instruction at the close of the whole case and in overruling the motion for new trial and in arrest of judgment for the following reasons: (a) Upon the plaintiff's own showing and the uncontradicted evidence the injuries which plaintiff received were the result of her own negligence and not the negligence of the defendant. (b) There was no proof of the specific charges of negligence alleged in the petition, and the plaintiff was permitted to recover upon an issue not embraced within the pleading. (c) The danger incident to the use of the machine was obvious and confessedly known by the plaintiff and was therefore assumed. Nugent v. Milling Co., 131 Mo. 241; Cummings v Collins, 61 Mo. 520; Harff v. Green, 67 S.W 576; Walson v. Coal Co., 52 Mo.App. 366; Alcove v. Railroad, 108 Mo. 81; Claybaugh v. Railroad, 56 Mo.App. 630; Lucey v. Han. Oil Co., 129 Mo. 32. (2) The petition fails to state a cause of action for the reason that the specific acts of negligence stated in the plaintiff's petition are not stated or shown to be the cause of the plaintiff's injury; and the instructions and the judgment are predicated upon negligence not charged in the petition. Stoneman v. Railroad, 58 Mo. 503; Holman v. Railroad, 62 Mo. 562; Smith v. Hardesty, 31 Mo. 411. (3) Unwilling observance of an order through fear of loss of employment or wages does not affect the assumption of risk. This vice runs through all of plaintiff's instructions. Leavy v. Railroad, 139 Mass. 580; s. c., 2 N.E. 115; 52 Am. Rep. 733; Sweeney v. B. & J. Env. Co., 101 N.Y. 520; s. c., 54 Am. Rep. 722; 20 Ency. of Law (2 Ed.), p. 121 and note.
Alexander Young, Max F. Ruler and Upton M. Young for respondent.
(1) Unwilling observations of an order through fear of loss of employment or wages, does affect the assumption of risks. Appellant's attorneys in support of a contrary view cited the following cases: Leavy v. Biston, 139 Mass. 580; 101 N.Y. 520. In support of respondent's view, see Keegan v. Kavanaugh, 62 Mo. 230; Schroeder v. Railroad, 108 Mo. 323; Stevens v. Railroad, 96 Mo. 207. (2) Where a hod carrier engaged in an excavation, having manifested some reluctance to descend, was ordered by his employer to go down (just as plaintiff in this case was ordered to a place of danger), and the earth caved in upon him and killed him, held, that the order was an implied assurance that there was no danger; that the laborer properly relied on the superior information of the master, and that the latter was liable. Keegan v. Kavanaugh, 62 Mo. 230; Schroeder v. Railroad, 108 Mo. 323, and cases cited. Stephens v. Railroad, 96 Mo. 207. (3) In Shortel v. City of St. Joseph, 104 Mo. 114, the court held: "Master and servant do not stand upon an equal footing, even when they have equal knowledge of danger. The position of the servant is one of subordination, and obedience to the master, and he has the right to rely upon the superior knowledge and skill of the master, and is not entirely free to act upon his own suspicions of danger. (4) The case Nugent v. Milling Co., 131 Mo. 241 (quoted in Roberts v. Tel. Co., 166 Mo. 478), and the cases of Harff v. Green, 67 S.W. 576, and Cummings v. Collins, 61 Mo. 520, is each clearly distinguishable from the case now before this court. In Cummings v. Collins, supra, the court uses this language "When a servant of mature years undertakes any labor outside of duties he is engaged to perform, the risks incident to which are equally open to the observation of himself and master, the servant takes upon himself all such risk." In the case here cited, the servant was of mature years and undertook (of his own volition) such risks. The Nugent, Roberts, Harff, and Collins cases, cited by opposing counsel, are without application to the case now before the court, as a careful perusal will make apparent.
--Plaintiff Lena Adolff was employed, in the year 1900, in the bakery of the defendant, the Columbia Pretzel & Baking Company, and had been employed there for ten months prior to the time she met with the accident complained of in this action. Said accident occurred May 7th in that year, when the plaintiff was a minor not quite eighteen years of age.
A dough-rolling or kneading machine was used in the bakery and was operated by a skilled employee called the "baker," it being a machine, as the testimony tends to show, requiring the attention of a man, and somewhat dangerous for an unskillful, inexperienced person to use. The machine consisted of two iron rollers about three feet long and ten inches in diameter, one set above the other at a distance which could be changed according to the thickness of dough desired; but they were usually set about an inch or an inch and one-half apart. Back of these rollers was a wooden trough as wide as they were long, set at a steep incline towards the rollers, in which the dough was placed and down which it slid to the rollers, passed between them and came out rolled or kneaded into a trough immediately in front, whence it was taken and either re-rolled or carried to another machine to be cut into pretzels, loaves, or other forms of bread. The rollers were turned by two cogwheels running into each other and turned by a pulley on which ran a belt that was connected at its other end with a shaft rotated by steam power, as was all the machinery in the bakery. There were both a loose and a tight pulley, but no shift to throw the tight pulley on the loose one; and, in fact, there seems to have been a nail driven in the tight pulley to prevent the belt from working on the loose one. The result was that to stop the rollers the steam had to be shut off.
Plaintiff, although she had been employed in the bakery for ten months before she was hurt, had never worked at this machine, but had worked two months on a smaller pretzel-cutting machine, different in its construction and operation from the one that hurt her; and before that time had done manual labor.
There was testimony that on two occasions before the accident she had gone to the rolling machine to get the rolled dough, but had been interfered with by the baker before she rolled it. There was testimony also that she knew the machine was dangerous and had been warned to stay away from it.
Her testimony (and it is corroborated by that of other witnesses) is that, early in the morning of the accident, she was told by the forewoman in charge of the girls in the room to get some dough from the rolling machine or to roll some dough. This command was given to her for the reason that the baker who had charge of that machine had left the bakery some moments before and the hands were out of dough. The plaintiff remonstrated against the order, saying she was afraid to try to run dough through the machine, but was told by the forwoman, Annie Meisenbach, that if she did not obey she would be discharged or her wages cut down, as the plaintiff testified; though the forewoman denied giving the order and swore that plaintiff went voluntarily to the machine in disregard of instructions theretofore given to stay away from it. On this point the evidence is quite conflicting. At all events, plaintiff attempted to roll a lump of dough through the machine; but it stuck or lodged on the floor of the wooden trough before reaching the rollers, and to force it through, plaintiff put her left hand over the top of the rollers and pushed the dough towards them, with the result that her hand was caught between the rollers and so badly mashed to four inches above her wrist, that the flesh was loosened from the bones and her thumb had to be amputated.
The acts of negligence charged in the petition are that no rules were posted in the establishment prescribing the duties and regulating the conduct of the employees; that an incompetent person and one of intemperate habits was put in charge of the steam dough-roller; that the machinery was not properly made and covered; that there was no appliance whereby the belt might be thrown off the tight pulley, so as to stop the rollers in case of accident; that the forewoman, knowing the machine was dangerous to operate by one unfamiliar with it, gave the command aforesaid to plaintiff to get dough from it, in obeying which order plaintiff, on account of her inexperience, received the injuries recited.
The answer contains a general denial, a plea that plaintiff's injuries were due to her own negligence and that she knew of the danger incident to operating the roller when she undertook to use it.
At the instance of the plaintiff the court gave eight instructions; at the instance of the defendant nineteen, and of its own motion four; thirty-one in all. Five others requested by defendant were refused, besides an instruction in the nature of a demurrer to plaintiff's case at the close of her evidence.
The verdict was in plaintiff's favor, her damages were assessed at $ 3,000, judgment was entered for that sum, and an appeal taken to this court.
Three reasons are assigned by the defendant why the demurrer to plaintiff's case should have been sustained, and they are as follows:
First. Whatever danger there was in using the machine was necessarily incident to its operation and was, namely, that the operator might permit his hand to be drawn between the rollers. But...
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