Bair v. Heibel

• Decision Date: 15 December 1903
• Citation: 77 S.W. 1017,103 Mo. App. 621
• Parties: BAIR v. HEIBEL et al.
• Court: Missouri Court of Appeals

77 S.W. 1017

103 Mo. App. 621

BAIR v. HEIBEL et al.

Court of Appeals at St. Louis, Missouri.

December 15, 1903.

INJURY TO EMPLOYÉ—GUARDING DANGEROUS MACHINERY—INSTRUCTING AS TO DANGER— ACTION ON STATUTE — PLEADING — ASSUMPTION OF RISK—CONTRIBUTORY NEGLIGENCE.

1. At common law the master is not required to guard dangerous machinery, though he might be liable for allowing a person, too young and inexperienced to appreciate the danger and assume the risk, to expose himself to the hazard.

2. Failure of a master to instruct an employé as to a danger which he otherwise learned does not affect the master's liability.

3. Where a petition sufficiently states a cause of action based on a public statute of the state, it is immaterial that it does not mention the statute.

4. Under Rev. St. 1899, § 6433, providing that belting, shafting, gearing, and drums, when so placed in establishments as to be dangerous to employés therein, shall be guarded, when possible, it is a question of fact whether it was practicably consistent with the effective use of a machine to guard the cogwheels thereof, by which an employé was injured.

5. Where a master fails to guard the cogwheels of a machine as required by Rev. St. 1899, § 6433, the servant does not assume the risk thereof, though he may be guilty of contributory negligence if the danger is so great that a prudent person of his years and capacity would have declined to face it.

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

Action by Frank Bair, by his next friend, Agnes L. Hein, against Peter Heibel and others. Judgment for plaintiff. Defendants appeal. Reversed.

Louis A. Steber, for appellants. Klene & Welsh, for respondent.

Statement.

GOODE, J.

In September, 1901, appellants engaged the respondent, who was at that time 17 years of age, to work in a box factory conducted by them in the city of St. Louis. One of the machines used in the factory was a planer. This machine stood upright, the planing blade resting about half the height of a man of medium size above the floor. In front of the blade was a platform on which one end of the board to be planed was laid. The board was then pushed forward until it was taken hold of by rolling cylinders, drawn through the machine, and planed as it passed through. The pictures in the record look as though the machine was three or four feet in width. It had at either side large and small cogwheels, which ran into each other and turned the cylinders. The machine was operated by belts and pulleys. It was attended by Henry Heibel, one of the firm. Respondent, Bair, worked behind it, his principal task being to carry boards away from the planer after they were planed; but he also oiled the machinery in the factory, shoveled sawdust, and nailed boxes. He testified that it was part of his employment to help in front of the planer now and then; that sometimes Henry Heibel would want his assistance, and would then lift his finger as a signal for him to come forward. This is denied by the witnesses for the appellants. There was contradictory evidence as to whether the plaintiff had been warned that the planer was dangerous, and to keep away from it; but it is certain he knew the danger incident to being about it— particularly the risk of getting his arm or clothing caught in the cogwheels—for on this point he testified himself that he knew and appreciated the danger of letting his hands or person come in contact with the cogs, knew he would get hurt if he did so, and did not claim he was too young to fully understand the hazard. When the accident that gave rise to this litigation occurred, he had been working in the factory, at the duties mentioned, for three months. Bair's own version of how he got hurt is that Henry Heibel was trying to force a board 15 or 16 feet long into the planer, but, as the board was saturated with water and had swelled, the rollers would not draw it in; that Heibel raised his finger for him (Bair) to come forward and assist in shoving the board; that he did so, and the two pulled it from between the rollers. They then endeavored to force it back, and, while pushing it, plaintiff lost his balance and fell against the machine, his right arm striking against the cogwheels on one side, which caught the arm and crushed it so badly between the wrist and elbow that it had to be amputated. The cogwheels at the sides of the planer were open and unguarded. The testimony of the witnesses for the appellants is totally different, and is to this effect: There was no board in the planer at the time of the accident, but just then Henry Heibel was straightening out some lumber he intended to plane, and getting it where he could handle it conveniently. The respondent, Bair, was doing nothing immediately before he was hurt; was simply standing by the planer, with his arm over the top, and near the cogwheels. Suddenly, by some careless movement, his arm was brought into contact with the cogwheels, and caught by them. The first any one in the factory knew of the accident was when Bair screamed. Then the machinery was stopped as soon as possible, and his arm extricated from the wheels. One fact slightly tends to corroborate this version of the affair, for, when the machinery was stopped, Bair, instead of being in front of the planer, was at the side of it, where the witnesses said they saw him before he was caught. In explanation of this circumstance, he swore he sprang from the front to that side after his arm was seized by the cogs. Appellants are accused of negligence in the following particulars: Ordering the respondent to help force the board into the machine — a dangerous task, but not known to be by him. Appellants knew the machine was dangerous, and operated it in a careless manner, which caused the injury. Plaintiff was inexperienced and uninstructed as to the dangerous character and condition of the machine, and, had he been instructed by the appellants in reference to its unprotected and exposed condition, he would have been forewarned, and not injured. Appellants were negligent in not protecting and covering the cogwheels, and the injury would not have occurred, had the wheels been covered. At the conclusion of the testimony an instruction was requested by the appellants, and refused by the court, that, under the law and the evidence, the plaintiff could not recover.

The following instructions were given to the jury:

For the plaintiff:

"(1) The court instructs the jury that if they find from the evidence that the planer mentioned in the evidence was a dangerous machine, and known to be so by defendants, or that defendants operated the same in a negligent and careless manner, or that defendants permitted the cogwheels on said planer to be and remain unprotected and dangerous when operated, and that plaintiff, by direction of defendants' foreman, Henry Heibel, was at the time of his injury assisting said foreman in forcing a board into said machine, and while doing so he was caught and injured by said cogwheels, and that the defendants knew, or by the exercise of ordinary care would have known, of said danger, then the law imposed on defendants the duty of so boxing and guarding said cogwheels as to protect plaintiff and others from injury, or to give to him reasonable notice of such danger; and if the jury further find from the evidence that the danger from the machinery aforesaid, as used by defendants, was not apparent to a party of the age and experience of plaintiff, as shown by the evidence, and that he did not have sufficient or reasonable notice of such danger, and that plaintiff, without any negligence on his part, by reason of his youth and inexperience, or reliance upon directions given him, failed to appreciate the danger of forcing a board into the planer, and was injured in consequence, the defendants will be responsible therefor, and the jury will find for the plaintiff.

"(2) If the jury believes from the evidence that plaintiff was injured by reason and on account of the failure to cover or protect the cogwheels on defendants' planer mentioned in the evidence, and that said planer was unsafe and dangerous to plaintiff and others in defendants' employ, by reason of the fact that said cogwheels were not covered or guarded, to work in and about the same, then plaintiff's right of recovery herein will not be defeated by knowledge on his part, if he had knowledge, of the condition thereof, if it was not so dangerous as to threaten immediate injury, or if he might reasonably have supposed that he could safely work about it, by the use of care and caution, and if he did use all the care incident to the condition in which he was placed, considering his age and experience, as shown by the evidence.

"(3) If the jury find that the cogwheels on defendants' planer were, at the time plaintiff was injured, unsafe and dangerous, by reason of not being properly protected or covered, and that said defect rendered said planer dangerous, then, although such defect was visible, and the danger of operating said machine in the manner described in...