Lawrence v. Heidbreder Ice Co.

• Citation: 119 Mo. App. 316,93 S.W. 897
• Parties: LAWRENCE v. HEIDBREDER ICE CO.
• Decision Date: 10 April 1906
• Court: Court of Appeal of Missouri (US)

93 S.W. 897

119 Mo. App. 316

LAWRENCE v. HEIDBREDER ICE CO.

St. Louis Court of Appeals. Missouri.

April 10, 1906.

1. MASTER AND SERVANT—INJURIES TO SERVANT —CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to a servant, evidence held to present a question for the jury whether the servant was bound to know that injury would result if he attempted to do the work in the manner in which he did, and whether he chose a dangerous way to do the work when there were safe ways, so as to show him guilty of contributory negligence.

2. SAME.

That a servant knew that a machine he was using was out of order does not preclude his recovery for an injury therefrom, unless the machine was so dangerous that a person of ordinary prudence would not have used it.

3. SAME—PROXIMATE CAUSE OF INJURY.

Where an employer furnished a servant a machine known to be unsafe by reason of a loose bar, and, when the defect hindered the operation of the machine, the servant was injured in an attempt to continue the work, the defect was the proximate cause of the injury.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Albert J. Lawrence against the Heidbreder Ice Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Defendant appealed from a judgment in an action to recover for an injury sustained by plaintiff while employed by defendant, an incorporated company engaged in the manufacture of artificial ice. The negligence charged is putting plaintiff to work on a machine which was broken and not reasonably safe. The ice was manufactured in blocks of about 200 pounds weight, frozen in square cans. The cans with the blocks of ice within were lifted with an overhead crane from the tank where the ice was frozen, swung over a bathing tank of hot water three feet away, submerged in the hot water for a moment to melt the ice blocks enough to loosen them in the can, and then deposited on an implement called a "dumper." The workman stood behind this implement, and by pushing on the top of the can with his hand tilted the dumper from an upright position to a horizontal position, whereupon the block of ice slipped out of the can and glided down a chute into the storage room. The record contains scanty evidence regarding the dimensions, shape, and operation of the dumping implement, and some of it as reported is unintelligible to one not familiar with the construction and operation of the dumper. Two cuts of the machine are printed in defendant's brief, which depict it in a general way, though plaintiff's testimony is that the one he worked with was in several particulars unlike the one shown in the picture. We gather from the cuts and the testimony that the machine has a square or oblong wooden bottom like the top of a small table, and that from two corners of this bottom rise wooden arms or standards, something as the legs of an upturned table do; that five iron bars about twelve inches long, one inch wide, and a quarter of an inch thick stretch like bed slats from one arm to the other at regular intervals, and are fastened to the arms by iron bolts or rivets. On the day plaintiff was hurt, the topmost iron bar on the dumper he used was detached at one end; the rivet having broken so the loose end of the bar bad a play of an inch or so. Early in the morning plaintiff called the attention of the foreman of the establishment to the loose bar, but was told by him that it would hold all right and to continue working with the machine as it was until he (the foreman) had it fixed. Plaintiff went on with his work without mishap until early in the afternoon, when, as he was in the act of dumping a cake of ice, the loose end of the bar swung out several inches, and the ice caught against it and was held in the can, but protruding about four inches. The can itself had slipped forward on the dumper four inches or more. When the ice caught on the bar, plaintiff, who was standing at the end of the dumper, took hold of the upper edge of the wooden bottom and pulled upward and backward on it, thereby raising the machine toward an upright position. The dumper is described as having legs three feet high, but they are not shown in the cuts; and it is said that when in use the legs were thrust through the floor, so that the back, or slatted part, was even with the floor when the ice was dumped. An impression is given that the dumper turned from an upright to a horizontal position on an axle, though this is not stated. At any rate, as plaintiff drew the machine upward, the can of ice slipped suddenly and, falling on the bottom of the dumper, caught his fingers and mashed them. As frozen, a block of ice lacks several inches of being as tall as the can, and hence does not fill the can to its mouth. But, as said above, on the occasion in question the block had emerged several inches from the can before catching on the loose bar. Plaintiff testified that as he raised the dumper the ice fell to the bottom of the can, thereby causing the can, which had slipped forward, to "jump" down on his fingers. One of the dumpers in use in the factory was exhibited to the jury at the trial, and its operation illustrated. That dumper had an iron rod across the under surface and near the upper edge of the wooden bottom, with ends projecting beyond the sides of the bottom. It was the contention of the defendant that, to right the dumper, plaintiff should have grasped the ends of the rod, which afforded a safe hold, instead of lapping his fingers over the edge of the bottom and exposing them to injury by the drop of the can of ice. The testimony for the plaintiff was that the machine he worked with had no rod across the bottom. For the defendant it was testified that the loosened bar had nothing to do with the can's slipping forward when plaintiff tilted the machine to dump the ice, but that this often happened on machines in good order. The first of the following cuts, which are taken from defendant's brief, shows a dumper in an upright position; the second, as the dumper which hurt plaintiff looked when horizontal.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

McKeighan & Watts and W. R. Gentry, for appellant. Wm. D. Summer, for respondent.

GOODE, J. (after stating the facts).

1. The proposition is advanced that defendant should have been ruled guilty of contributory negligence. This proposition rests on two assumptions regarding the facts. The first is that the plaintiff, unless he was acting thoughtlessly, was bound to know the can of ice would fall as he raised the dumper and would mash his fingers if they were clasped over the edge of the bottom. But this is not obviously true on the present record and with the light we have about the operation of the machine. Plaintiff's testimony is that the ice suddenly slipped back into the can, and the can "jumped" on his hand. There is much testimony, too, that the method adopted by the plaintiff for raising the dumper was the one constantly used in the factory; and, of course, it would not have been if the can, in descending, always caught the operative's fingers. It was in testimony by defendant's president that cans frequently slipped on dumpers in perfect condition; and it is out of reason to say they would have been righted in the manner plaintiff used when hurt, unless the operation could be performed without injury to the hand. The cuts of the ice machine show the bottom of the can coincided in size with the bottom of the dumper; but this was not true, as appeared from testimony and the exhibition of the machine to the jury and to this court on the appeal. The framework was extended considerably beyond the can, and a workman's fingers, though lapped over the bottom of the dumper, would not necessarily be caught by a descending can, and might have been caught in this instance in consequence of the can jumping. Moreover, according to the evidence for the plaintiff, it was possible to raise the dumper as he did, without letting the fingers remain over the edge until a can which had slipped forward, slipped back. The hand could be withdrawn in time to escape injury. It would be improper for this court to say, on the facts before it, that plaintiff's fingers were bound to be caught.

The second assumption in support of the proposition that plaintiff was clearly guilty of contributory negligence is that he chose a dangerous way to right the dumper when there were safe ways. One of the supposed safe ways was to take hold of the ends of the iron rod projecting beyond the sides of the bottom. This argument is answered by the testimony that there was no rod on the machine which hurt plaintiff. But, if there was no rod, it is said he should have taken hold of the can near the top, and by raising on it have righted the dumper. This argument is answered by testimony that the method plaintiff adopted was the usual and best one, and by other testimony that the machine could not have been raised by lifting on the can of ice in the position it was in when plaintiff undertook to right the machine. These matters were for the jury, as reasonable men might draw different conclusions about any of them proving contributory negligence.

2. We are asked to hold the lower court erred in letting the jury pass on the issue of whether or not the loose bar on the dumper was the proximate cause of the injury, instead of holding there was no evidence to show it was. Whether an act of negligence was the proximate cause of an alleged damage is an issue of fact, if contrary opinions may arise on the evidence; if not, it is a court matter. Henry v. Railroad, 76 Mo. 288, 43 Am. Rep. 762. In a case like this some other essential facts ought to be found preliminary to the decision, by either court or jury, of the question of proximate cause. These facts are, first, that the machine with which a plaintiff was required to work was not reasonably safe; second, that the defendant had...