Albrecht v. Shultz Belting Company
| Decision Date | 22 May 1923 |
| Parties | EDWARD J. ALBRECHT v. SHULTZ BELTING COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. M. Hartmann Judge.
Reversed and remanded.
Holland Rutledge & Lashly for appellant.
(1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence. (a) Because the plaintiff was not entitled to recover under the statute. Boesel v. Wells-Fargo Exp. Co., 260 Mo 480; Meifert v. Union Sand Co., 124 Mo.App. 491; American Brewing Assn. v. Talbot, 141 Mo. 674; O'Brien v. Western Steel Co., 100 Mo. 183; Nugent v. Milling Co., 131 Mo. 243; Graney v. Railroad, 157 Mo. 666; Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 322; Smith v. Forrester-Nace Box Co., 193 Mo. 715. (b) Because plaintiff was not entitled to recover at common law. Authorities above; also Lore v. Mfg. Co., 160 Mo. 608; Lolinger v. Cordage Co., 124 Mo. 685; Blair v. Heibel, 103 Mo.App. 621. (2) The court erred in giving instruction number 2 at the instance of respondent. (a) Because under the testimony there was no evidence that would warrant a recovery either under the statute or common law, and the case should not have been submitted to the jury under any instruction whatsoever. Authorities supra. (b) Because there was no testimony upon which to predicate divers portions of said instructions. (3) The court erred in refusing to give Instruction C offered by appellant. Said instruction properly states the law in connection with contributory negligence. Where an employee may perform his duties in two ways, one of which is obviously dangerous and the other is free from danger, and he voluntarily selects the former, he is precluded from recovery. Moore v. Ry. Co., 146 Mo. 572; 1 Bailey on Personal Injuries, sec. 1121; Hurst v. Railroad, 163 Mo. 322; Smith v. Forrester-Nace Box Co., 193 Mo. 715; Nugent v. Milling Co., 131 Mo. 241, 243; Graney v. Railroad, 157 Mo. 666.
Jesse T. Friday for respondent; James T. Roberts of counsel.
(1) The statute, being highly remedial and in derogation of the common law, shall be literally construed so as to effectuate the true intent and meaning thereof. Sec. 7048, R. S. 1919; Austin v. Bluff City Shoe Co., 176 Mo.App. 547, 565; Cole v. North Am. Lead Co., 240 Mo. 247. (2) Plaintiff was not guilty of contributory negligence as a matter of law in placing the burlap curtain on top of the shelf, when taking his clothing from the closet, instead of pushing it aside. As here presented it was a question for the jury, and that issue having been determined by the jury is eliminated on appeal. Yates v. House Wrecking Co., 95 S.W. 549; Willadsen v. Creamery Co., 214 S.W. 58; Turner v. Land Co., 188 Mo.App. 494; Powell v. Land Co., 221 S.W. 765; Brasel v. Box Co., 220 S.W. 987; Wagner v. Gilsonite Co., 220 S.W. 890; Mininea v. Cooperage Co., 175 Mo.App. 103; Ossenberg v. Chemical Co., 218 S.W. 421; Wolf v. Scullin Steel Co., 217 S.W. 573; Ewing v. Tel. Co., 173 Mo.App. 508; Stafford v. Tel. Co., 113 Mo.App. 725. (3) Whether there is a casual connection between the failure to guard and the injury is usually a question for the jury. Austin v. Shoe Co., 176 Mo.App. 572; Lohmeyer v. Cordage Co., 137 Mo.App. 624; Henderson v. Kansas City, 117 Mo. 493; Shaw v. Kansas City, 196 S.W. 1091. (4) Appellant's contention that defendant could not have anticipated the injury, and it was the result of mere accident or misadventure, is not well taken. The object and purpose of the guarding statute was to put a stop to all such injuries which grew out of inattention, inadvertence, mishap, accident or misadventure. Cole v. North Am. Lead Co., 240 Mo. 407. (5) While the violation of the statute makes a case of negligence per se, and while the master may not have anticipated the very accident that did occur, yet the liability of a person charged with negligence does not depend upon the question whether or not he could or ought to have anticipated the very injury complained of, but he will be held liable for anything which, after the injury is complete, appears to have been the natural and probable consequence of his act or omission. Buckner v. Horse and Mule Co., 221 Mo. 719; Daneschosky v. Seibel, 193 S.W. 969; Fishburn v. Railroad, 127 Iowa 492. (6) Appellant contends that this shafting was so placed that it was not dangerous and need not be guarded. This was a question for the jury. Austin v. Shoe Co., 176 Mo.App. 573. (7) The petition alleges plaintiff was required to hang his clothes under the shelf in question and that allegation was supported by the undisputed testimony of plaintiff that the foreman directed him to hang his clothes in that particular place, and he was allowed fifteen minutes at closing time to perform this work, and he was paid for that time. In the circumstances here presented it was clearly within the scope of his duties. Millsap v. Beggs, 122 Mo.App. 9; Yates v. House Wrecking Co., 195 S.W. 549; Shepard v. Railroad, 3 Mo.App. 550; Mullery v. Tel. Co., 180 Mo.App. 128.
OPINIONIn Banc
This is an appeal from a judgment for damages for injuries which respondent suffered in appellant's factory. Appellant was engaged in the manufacture of leather belting, and respondent had been in its employ for about two years before he was hurt. The factory was in a three story building. Respondent first worked on the first floor at hand work. After a few months of this he was put at work on the third floor on a setting machine which was used to "iron out" or smooth hides. About two months before he was injured respondent's machine was moved to the second floor, and he worked there until he was injured. The work was of a character which required a change from street to working clothes. When respondent first went to work the foreman directed him to hang his street clothing under a shelf which had been fixed to the south wall of the third floor. Employees were given from five to fifteen minutes before quitting time to wash and change to their street clothing. The machinery was kept moving until the regular quitting time. Respondent was in the class which was allowed fifteen minutes. This had been the rule and practice all the time he had worked for appellant. There was evidence tending to show that the shelf under which respondent had been directed to hang his clothing and under which he had regularly hung it for about two years, was six and one-half feet high; that a board was fastened to the wall, and into this nails were partly driven, and upon these nails the clothing was hung this board extended from the wall about nine or ten inches. To this shelf light burlap, rather flimsy in character, was fastened and hung down about five feet. The shelf was about five feet wide. This was designed to protect clothing hanging under the shelf. Other similar shelves were used by other employees. The one in question was used by respondent and one other man.
About two months before respondent was injured, appellant undertook to place a shaft in the room on the third floor. Respondent's machine had been moved to the second floor and he then worked there. He and his fellow-employee continued to use the shelf for their street clothing as theretofore. The shaft was installed near the south side of the third-floor room. It was intended to be so placed that it center was twenty inches from the south wall. It was two and seven-sixteenths inches in diameter, and the wall at the shelf bulged about one inch. The surface of the shaft next the wall at the point where the shelf was placed was about seventeen and three-fourths inches from the wall. There is evidence which tends to show that the shaft was about six inches higher than the shelf. A computation will show that if these distances are taken, the shaft was a fraction over ten inches from the upper and outer edge of the shelf. There is other evidence which tends to show that this distance was nearly four inches greater. Other evidence points to distances between these two extremes. The shaft, when in operation, made 260 to 270 revolutions a minute. During the whole time, two years, of respondent's employment by appellant, he and other employees who used the shelf in question had, when they came to get their street clothing, habitually lifted the burlap which hung down from the shelf and placed it on top of the shelf in order that they might gain access to their clothing. The burlap was extended around the ends of the shelf two or more inches and nailed there. On the day he was injured, respondent left his machine at the usual time and proceeded to the shelf to get his street clothes. On this occasion he happened to be the first to reach the shelf. The machinery was still running and the shaft was revolving at the usual rate. It was unguarded, though the evidence shows that easily and at small expense, guards could have been provided which would in no way have interfered with the operation or uses of the shaft. Respondent, as was the custom, lifted the burlap for the purpose of placing it on the shelf. It caught on the shaft and wrapped around it. Respondent's right arm was carried with it and he was lifted from the floor. He lost his arm as a result of the injury.
The case was submitted to the jury on the issues whether appellant was negligent in (1) failing to guard the shafting, or (2) had failed to exercise ordinary care to furnish respondent a reasonably safe place to work, and (3) whether respondent was guilty of contributory negligence.
I. The shafting was unguarded, and it was practicable to guard it. It is not denied that it is negligence for an employer to fail to guard shafting when it falls within the statute (Simpson v. Iron Works Co., 249 Mo. 376, 155 S.W 810),...
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