Bishop v. Musick Plating Works

• Decision Date: 06 March 1928
• Citation: 3 S.W.2d 256,222 Mo.App. 370
• Parties: LEN BISHOP, RESPONDENT, v. MUSICK PLATING WORKS, A CORPORATION, APPELLANT. [*]
• Court: Missouri Court of Appeals

3 S.W.2d 256

222 Mo.App. 370

LEN BISHOP, RESPONDENT, v. MUSICK PLATING WORKS, A CORPORATION, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

March 6, 1928

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

AFFIRMED.

Judgment affirmed.

T. M Pierce and Samuel H. Liberman for appellant.

(1) It is only where the plaintiff's injury is the result of actual contact with the machine, or of parts of the machine with him, that he can recover as the result of an alleged failure to guard. Plaintiff was not injured by contact with the machine, or any part thereof, but by the article he was buffing, and he cannot recover under section 6786, Revised Statutes 1919. Sec. 6786, R. S. 1919; Mansfield v. Wagner Electric Mfg. Co., 294 Mo. 235, 242 S.W. 400; Rutledge v. Mo. Pac. Ry. Co., 110 Mo. 312; Cole v. Lead Co., 240 Mo. 397; Simpson v. Iron Works, 249 Mo. 376; Strode v. Columbia Box Co., 250 Mo. 695; Morgan v. Hinge Mfg. Co., 120 Mo.App 590; Railroad v. Conarty, 238 U.S. 243; Lang v Railroad, 255 U.S. 455; Ferguson v. Coal & Coke Co., 84 S.E. 573. (2) Section 6786, Revised Statutes 1919, does not apply to polishing machines, since, by section 6798, Revised Statutes 1919, the Legislature requires a specific device for such machines. Sec. 6798, R. S. 1919; State ex rel. Buchanan County v. Fulks, 296 Mo. 615; State ex inf. Barrett v. Dallmeyer, 295 Mo. 638. (3) It was reversible error to refuse to permit defendant to show on cross-examination of plaintiff that had the hood been placed right up to the machine, and the guard adjusted all the way down, it would have been safe. Manker v. Standard Oil Co., 203 Mo.App. 404; State ex rel. Manker v. Ellison, 230 S.W. 611. (4) Plaintiff's instruction No. 1 was erroneous. Wilsch v. Gleiforst, 259 S.W. 850; Moran v. Railroad, 255 S.W. 331; Edwards v. Lee, 147 Mo.App. 38. (5) There was no evidence as to the extent of plaintiff's loss of earnings up to the time of trial and no evidence as to any future loss of earnings. Plaintiff's instruction No. 2 on the measure of damages permitting recovery for these elements was improper. Tyon v. Wabash Railway Co., 207 Mo.App. 322; McElroy v. Swenson Const. Co., 213 Mo.App. 161; Coontz v. Railway, 115 Mo. 669; Slaughter v. Railway, 116 Mo. 269. (6) The court erred in refusing to give defendant's instruction D. Denkman v. Prudential Fixture Co., 289 S.W. 591. (7) The court erred in refusing to discharge the jury and declare a mistrial because of improper and prejudicial questions, conduct and argument of counsel for plaintiff. Hill v. Jackson, 265 S.W. 859; Chambers v. Kennedy, 274 S.W. 726; Dixon v. Frazier Davis Const. Co., 298 S.W. 827; Busse v. White, 302 Mo. 672; Monroe v. Railroad, 297 Mo. 633. (8) The damages are excessive.

Mark D. Eagleton, John F. Clancy and Hensley, Allen & Marsalek for respondent.

(1) Under the statute, the duty to guard is made dependent upon the circumstances that the machine is so placed as to be dangerous to the employees while engaged in their ordinary duties. The statute does not restrict the character of the danger, against which a guard must be provided, to danger of the employees coming into contact with the machine. Under this statute, where there is a well-recognized danger of injury by objects thrown by the machine in the course of its ordinary operation, the employer is required to guard against such danger. Phillips v. Hamilton-Brown Shoe Co., 178 Mo.App. 196; Strode v. Columbia Box Co., 124 Mo.App. 511; Mabe v. Gille, 271 S.W. 1023; Higgins v. Pulley Co., 240 S.W. 252; Isaacs v. Smith, 275 S.W. 555; Hindle v. Bertwistle, L. R. (1897) Q. B. 192; Betram v. Brewing Co., 142 Minn. 1045. (2) (a) Where there is no ambiguity in the language of a statute, there is no room for construction. Donaldson v. Donaldson, 249 Mo. 228; Trefny v. Eichenseer, 262 Mo. 436. (b) The rule that general provisions of a statute yield to specific provisions applies only where there is a conflict; where several statutory provisions relate to the same general topic they should be construed so as to give effect to all, if possible. Macke v. Byrd, 131 Mo. 682, 690; State ex rel. v. Roach, 258 Mo. 552; Blyston-Spencer v. Railroad, 152 Mo.App. 118; 36 Cyc. 1151. (3) No error was committed by the court in sustaining the objection to a question propounded to plaintiff on cross-examination, as follows: "Q. Now, you say that had this hood been placed up here and in its present position, and this feed with the adjustable guard had come part of the way down, it would have been all right?" The question as asked was vague and indefinite. The matter was gone into in detail, on both sides of the case, so that an answer to the foregoing question would have added nothing to the jury's knowledge on the subject. Miller v. Fleming, 259 S.W. 139; State v. Bobbitt, 242 Mo. 273; Locke v. City, 192 Mo. 570; Price v. Barnes, 300 Mo. 233-4; Thomas Cusack v. Lubrite Refining Co., 261 S.W. 729; Tranbarger v. Railroad, 250 Mo. 59-60. (4) Plaintiff's instruction No. 1 properly quoted the provisions of the guarding statute, and, although abstract, was not prejudicial to defendant, especially since defendant's instructions No. 3 and 6, definitely applied the law to the facts. Taussig v. Railroad, 186 Mo. 269; Nephler v. Woodward, 200 Mo. 179. (5) Plaintiff's instruction No. 4 was not erroneous in authorizing the jury to consider whatever loss of earnings, if any, they found from the evidence plaintiff had suffered or would suffer as a direct result of his injuries. (a) It must be presumed that the jury obeyed their oaths and allowed plaintiff only such sums as the evidence warranted. Laycock v. U. Rys. Co., 290 Mo. 344. (b) Since plaintiff was entitled to nominal damages, at least, for past and future loss of earnings, the instruction was correct, though general, and it was defendant's duty to ask a more specific charge on the subject, if desired. King v. City, 250 Mo. 501; Norris v. Railroad, 239 Mo. 695; Sang v. City, 262 Mo. 463; Kibble v. Railroad, 285 Mo. 617; State ex rel. v. Reynolds, 257 Mo. (en banc) 19. (6) The court properly refused defendant's instruction D. (a) Assumption of risk is not a defense to a cause of action arising under the guarding statute. Phillips v. Hamilton-Brown Shoe Co., supra. (b) The instruction, in the form offered by appellant, was likely to mislead the jury, because it failed to state plainly that plaintiff did not assume the risk of injury unless the danger arose solely from the necessary and incidental perils of his work, and not from defendant's negligence. Gillette v. Laederich, 242 S.W. 112; Dunn v. Dunnaker, 87 Mo. 597. (c) Other instructions given for defendant presented its theory of the case, and consequently the refusal of instruction D, even if it had been unexceptionable in form, would not constitute reversible error. Secs. 1276 and 1315, R. S. 1919. (7) The court did not err in refusing to discharge the jury when plaintiff's counsel asked witness Musick if he had stated that the insurance company had made pictures of the machine, and that he, witness, would have them in court. (a) The inquiry was a permissible one under the circumstances. Snyder v. Elec. Co., 284 Mo. 309 et seq; Jablonowski v. Mfg. Co., 312 Mo. 173; Carlson v. Transit Co., 282 S.W. 1037. (b) The connection of the insurance company with the case had already been brought out, without objection by appellant. The South St. Louis Ry. Co. v. Plate, 92 Mo. 634-5; Chambers v. Chester, 172 Mo. 490-1; Lindsay v. Kansas City, 195 Mo. 181; Julian v. K. C. Star Co., 209 Mo. 83-4; Perry v. Van Matre, 176 Mo.App. 114; Crandall v. Greeves, 181 Mo.App. 238-9; Tillery v. Harvey, 214 S.W. 249. (c) The above matter, as well as other complaints by appellant of alleged improper conduct of plaintiff's counsel during the examination of witness and argument, were questions for the trial court to determine, within his discretion. Gidionsen v. Railroad, 129 Mo. 402-4; Franklin v. Railroad, 188 Mo. 545; Brockman Comm. Co. v. Kilbourne, 111 Mo.App. 551; Plannett v. McFall, 284 S.W. 850. (8) The judgment of $ 7500 is not excessive, when measured by the amounts allowed in similar cases. $ 12,500--Adams v. Railroad., 287 Mo. 535; $ 12,500--Knott v. Boiler Wks., 299 Mo. 613; $ 15,000--Russell v. Mo. Pac. R. R., 295 S.W. 102; Manley v. Wells, 292 S.W. 67.

BENNICK, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

This is an action for damages for personal injuries, sustained by plaintiff while in the employ of defendant, on May 5, 1925, when a piece of metal was thrown from a buffing machine operated by plaintiff, and caused to strike his left eye. The verdict of the jury was for plaintiff, in the sum of $ 7500; and from the judgment rendered in conformity therewith, defendant, after an unavailing motion for a new trial, has duly perfected its appeal.

The negligence relied upon was that the machine in question had not been safely and securely guarded, although it was so placed in defendant's establishment as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, and could have been safely and securely guarded.

The answer of defendant was a general denial.

Defendant, as its name implies, is a jobbing concern, engaged in the business of polishing, buffing, and plating metal parts that are designed to go into many types of finished products. Plaintiff was thoroughly experienced in that line of work, and had seen service with defendant at intervals throughout the period of eight years prior to the time when his injury was received.

It is difficult to describe the machine upon which plaintiff's work was done, other than to say that it consisted of a horizontal shaft, situated...