93 S.W. 897 (Mo.App. 1906), Lawrence v. Heidbreder Ice Co.
|Citation:||93 S.W. 897, 119 Mo.App. 316|
|Opinion Judge:||[119 Mo.App. 324] GOODE, J. (after stating the facts).|
|Party Name:||LAWRENCE, Respondent, v. HEIDBREDER ICE COMPANY, Appellant|
|Attorney:||McKeighan, Wood & Watts and William R. Gentry for appellant. William D. Sumner for respondent.|
|Case Date:||April 10, 1906|
|Court:||Court of Appeals of Missouri|
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher, Judge.
STATEMENT.--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 two hundred 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 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 bar of the dumper he used was detached at one end, the rivet having broken so the loose end of the bar had 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.
[SEE FIG. 1 IN ORIGINAL]
FIG. 1.--Showing dumper and ice can in upright position.
[SEE FIG. 2 IN ORIGINAL]
FIG. 2.--Showing dumper and ice can after being dumped.
Plaintiff's fingers extended over the bottom at N into the space between N and the ice can.
(1) The evidence of plaintiff and all his witnesses, as well as that of the defendant's witnesses, showed conclusively that the broken rivet was not the proximate cause of the injury to the plaintiff's finger. There was no evidence tending to show any negligence in not providing any appliance to keep the can from slipping, hence that was properly excluded from the jury, the sole...
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