Hollweg v. Bell Telephone Co.

• Decision Date: 06 March 1906
• Citation: 195 Mo. 149,93 S.W. 262
• Parties: HOLLWEG v. BELL TELEPHONE CO.
• Court: Missouri Supreme Court

93 S.W. 262

195 Mo. 149

HOLLWEG v. BELL TELEPHONE CO.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. MASTER AND SERVANT — INJURY TO SERVANT — NEGLIGENCE OF FOREMAN — LIABILITY OF MASTER.

Where a foreman possessing the authority to direct employés, and to employ and discharge them, is guilty of negligence in failing to perform a duty which he owes to an employé, who in consequence thereof is injured, the employer is liable for the injuries received, though the foreman occasionally acted in the capacity of a fellow servant.

2. TRIAL — DEMURRER TO EVIDENCE — HEARING AND DETERMINATION.

A demurrer to plaintiff's evidence in an action for negligence cannot be sustained, unless the material facts proven and the inferences which may be drawn from the evidence fail to prove a fact essential to a recovery.

3. MASTER AND SERVANT — INJURY TO SERVANT — VICE PRINCIPAL.

A foreman of a shop, with authority to hire and discharge and direct employés directed an employé to operate a saw and cut out certain material, and to assist co-employés to repair a machine. The employé, after operating the saw for a time, went to the assistance of his co-employés. The foreman, during the interval, operated the saw and left a block of wood near it. Plaintiff returned to the saw and set it in motion. The block was drawn into it and thrown off, striking plaintiff. Held, that the foreman was a vice principal, and the master was liable for his negligence, if any.

4. SAME — NEGLIGENCE OF FOREMAN — QUESTION FOR JURY.

Evidence, in an action against an employer for injuries received by an employé while operating a saw, examined, and held, that the question of the negligence of the foreman, causing the injury complained of, was for the jury.

5. SAME — NEGLIGENCE OF EMPLOYÉ — QUESTION FOR JURY.

Evidence, in an action for personal injuries received by an employé while operating a saw, examined, and held, that the question of his contributory negligence was for the jury.

Appeal from St. Louis Circuit Court; D. G. Taylor, Judge.

Action by George Hollweg against the Bell Telephone Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

Rassieur, Schnurmacher & Rassieur, for appellant. Seddon & Holland, for respondent.

BURGESS, P. J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff through and by reason of the negligence of defendant's servants and employés. The petition alleges that defendant was, at the time of the alleged injury, a corporation engaged in the business of furnishing telephone service, and at the same time operating a manufacturing plant, and that plaintiff was, and for several years had been, in defendant's employ, engaged in working on certain woodworking machinery in its said establishment. That on or about the 3d day of July, 1901, plaintiff had been working at one of the machines, and thereupon, on the day aforesaid, the plaintiff was directed by the foreman to leave said machine and to cut certain material at one of the circular saws in said establishment; that plaintiff thereupon, by means of a certain lever, put said saw in motion, when a small block of wood which had been lying on the saw table, in contact with said saw, was violently thrown off, and struck plaintiff in one of his eyes; that plaintiff did not see the block of wood until after it was thrown off by the saw as aforesaid; that said injury was due to the negligence of the defendant in this, that the defendant's foreman, who ordered the plaintiff to work at said saw, carelessly and negligently left the block of wood upon the table where it would be caught by the saw when put in motion by the plaintiff and in negligently leaving said saw and saw table in such unsafe condition, that the plaintiff could be injured thereby in the manner aforesaid, and in failing to give plaintiff any warning of its unsafe condition, although the defendant, through its foreman, had actual knowledge of such dangerous condition. That, in consequence of being struck by said block of wood as aforesaid, plaintiff's eye was so badly injured that since said time it became totally blind and had to be removed. That plaintiff has, in consequence of such injury, suffered and still suffers and will continue to suffer, in the future, great pain and mental anguish; that his injury is permanent, and that in consequence thereof he has become permanently disabled from working at his trade aforesaid, and by reason of the premises plaintiff has been injured in the sum of $10,000. The defenses were a general denial, and plea of contributory negligence. The answer further alleges that all of the details of the surroundings amid which, and of the apparatus with which, plaintiff was working on the occasion mentioned in his petition were open and obvious, and were known to plaintiff, or by the exercise of ordinary care might have been known to plaintiff, and that whatever damages, if any, existed in working amid said surroundings, and with said apparatus on said occasion, were open and obvious, and were known to plaintiff, or by the exercise of ordinary care might have been known to plaintiff, and were incident to plaintiff's employment, and that plaintiff assumed whatever risk, if any there was, in working amid said surroundings on said occasion. Plaintiff, by reply to defendant's answer, denied all new matter therein contained. At the close of plaintiff's evidence the defendant interposed a demurrer thereto, which was sustained; whereupon plaintiff took a nonsuit with leave to move to set the same aside. A motion for that purpose was then filed by plaintiff and overruled by the court; hence this appeal.

The parties practically agree upon the facts disclosed by the record, which are substantially as follows: Plaintiff was employed by the defendant as a cabinet maker in its wood working machinery department, or carpenter shop, in the city of St. Louis. The shop was in charge of a foreman named Loughman who directed the men in every respect; and who alone hired and discharged the employés of this department. The machinery in the shop consisted of a cross-cut and rip saw, a universal boring machine and several wood working machines. The plaintiff was 40 years of age, and had been a machine hand since he was 19. He had been in the employ of the company for several years. He did work at all of the machines, but on July 3, 1901, the day of the injury, he was engaged, under the direction of the foreman, to cut out certain work at this cross-cut and rip saw. This was rigged in a saw table about seven feet long from north to south, and five feet wide from east to west; the table was about 30 inches high; the saw revolving on a spindle fastened underneath, projected through the table at a distance of about 18 inches from the front of the table, the south end, where the operator would have to stand. A cast-iron gauge was fastened to the table, east of the saw and parallel with it and placed at such distance from it as was from time to time required to saw the boards to the required width. This gauge was solid, so that one could not look through it when approaching from the side, and was about 24 inches long and about seven inches high standing upright. The saw was operated by means of a lever attached to the east side of the table. On the morning of the injury the plaintiff had been directed to cut out certain material at this cross-cut and rip saw. The order was a general one to get out 10 P. B. X.'s, and was given when the plaintiff began work in the morning, about 8 o'clock, and was the last order given him that day by the foreman. When plaintiff began work in the morning he was told by the foreman to help Mack and Marqua fix their machine. These were the only orders given the plaintiff prior to the accident. On the morning of the injury, after working for some time with the cross-cut and rip saw, plaintiff, in obedience to the previous order received from the foreman, went over to what was termed the universal machine to assist his co-workers, Mack and Marqua. He remained at the universal machine about 15 minutes and then returned to the saw table to resume his work. During that interval, however, the foreman, Loughman, had been at the saw table to cut out something, and having finished, stopped the saw and went away. The testimony is that a block struck the plaintiff in the eye, but there is no testimony as to its position on the table, and no direct testimony whatever that it was left there by the foreman. The plaintiff stated that when he got back to the machine, he looked but saw nothing. He could see all around on the saw table. As far as he could see, there was nothing wrong about the saw table. Thereupon he pulled the lever and set the saw in motion and proceeded to his position in front of the saw table. Just as he reached there, a block of wood was thrown violently against plaintiff's face. It struck him in the eye with the result that the sight of one eye was entirely destroyed and the sight of the other endangered.

The evidence showed that when the plaintiff left the saw to go over to the universal machine he left his saw table clean and clear; that in the interval no one except the foreman had gone near the machine and that the block which hit the plaintiff had been cut out by the foreman and had been left on the table by him in close proximity to the saw. It also appears in evidence that it is well known to machine workers that when such a block is left close to the saw the motion of the saw will draw it in and will throw it off, just as happened in this case. The evidence also showed that no warning of any kind was given by the foreman to the plaintiff that he had left this block lying on the table. Nor was there any direct testimony that the foreman had left the block that struck plaintiff on the table, and there is no evidence that the foreman had any actual knowledge that any block had been left on the table....