Bliesner v. G. Riesmeyer Distilling Co.

• Decision Date: 06 May 1913
• Citation: 157 S.W. 980
• Parties: BLIESNER v. G. RIESMEYER DISTILLING CO.
• Court: Missouri Court of Appeals

157 S.W. 980

BLIESNER v. G. RIESMEYER DISTILLING CO.

St. Louis Court of Appeals. Missouri.

May 6, 1913.

Rehearing Denied June 17, 1913.

1. MASTER AND SERVANT (§ 289) — DANGEROUS APPLIANCES — INJURIES — EVIDENCE — SUFFICIENCY.

Evidence, in an action by a servant against the master for negligence in furnishing him with a dangerous appliance to work with, resulting in injuries, held to present a question for the jury whether the servant was guilty of contributory negligence by continuing to work with the appliance after he had knowledge of its danger.

2. MASTER AND SERVANT (§§ 101, 102) — TOOLS — MASTER'S DUTY.

It is the duty of the master to furnish his servant with reasonably safe appliances to work with.

3. MASTER AND SERVANT (§ 97) — DEFECTIVE TOOLS — NEGLIGENCE.

In determining whether a master was negligent in not furnishing a reasonably safe machine to work with, the master need not have anticipated the very injury complained of, or that it would have occurred exactly as it did, but it is sufficient that the negligence was the proximate cause of the injury.

4. MASTER AND SERVANT (§ 107) — DEFECTIVE TOOLS — MASTER'S DUTY.

The fact that the appliance furnished by a master to his servant is simple, and for a simple purpose, does not excuse him from seeing that it is reasonably safe for that purpose.

5. MASTER AND SERVANT (§ 245) — DANGEROUS APPLIANCES — QUESTION FOR JURY.

A master could not be relieved from responsibility for injuries to his servant resulting from his negligence in furnishing him an unsafe instrument to work with, on the ground that the injury arose from the manner in which it was used, rather than from a defect inherent in the instrument, where there was evidence that the servant was instructed to use it as he did.

6. MASTER AND SERVANT (§ 226) — APPLIANCES — RISKS ASSUMED BY SERVANT.

A servant never assumes the risk of a master's negligence, but only such risks as are incident to the employment after the performance by the master of that which the law requires of him.

7. MASTER AND SERVANT (§ 234) — DANGEROUS APPLIANCES — KNOWLEDGE OF DANGER.

Mere knowledge on the part of the servant of the danger in using a defective instrument or appliance will not preclude a recovery by the servant, unless the danger is so obvious and imminent that a man of ordinary prudence would, under the circumstances, refuse to continue to work with the instrumentality in question.

8. MASTER AND SERVANT (§ 221) — DANGEROUS APPLIANCES — NOTICE TO MASTER — PROMISE TO REMEDY.

Notwithstanding that the defect or the danger in the appliance is known to servant, yet, if he complains thereof to the master, and the latter promises to repair the defect or remove the danger, the servant may recover for an injury thereby caused within such period as would be reasonable to allow the master for its performance.

9. MASTER AND SERVANT (§ 288) — DEFECTIVE MACHINERY — NOTICE — PROMISE TO REMEDY DANGER.

Where a servant continued working with a machine after complaint to the master of its defects, and it could be reasonably inferred from the evidence that he was induced so to do by promise of the master to remedy it or furnish a better machine, whether such was the inducement was a question for the jury.

10. TRIAL (§ 296) — INSTRUCTIONS — DEFECTS IN INSTRUCTIONS CURED BY SUBSEQUENT INSTRUCTIONS.

Where an instruction for plaintiff was given purporting to cover the entire case, authorizing recovery if certain facts were found, but omitted facts necessary under the law to warrant a recovery and ignored the defense of contributory negligence, but in other instructions given for defendant the facts omitted were supplied, and one on contributory negligence properly given, the error was thereby cured.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Paul Bliesner, by Minnie Bliesner, his next friend, against the G. Riesmeyer Distilling Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Schnurmacher & Rassieur and G. Wm. Senn, all of St. Louis, for appellant. George A. Davies and Andrew C. Ketring, both of St. Louis, for respondent.

ALLEN, J.

This is an action by a servant against the master for personal injuries received in the course of the employment. When injured plaintiff, a young man 20 years of age, was engaged in corking bottles for the defendant distilling company, using what is called a hand corker, consisting of a tube or cylinder with a plunger, for inserting corks in bottles. The instrument in question was operated entirely by hand. It is claimed by plaintiff that the cylinder of the corking machine which he was using was defective, in that it was worn so that the edge of the metal portion of it, which it seems was of brass, was rough, having, as plaintiff said, little "burrs" or projections on it, and that in performing his work he injured his finger by reason of the defects in the instrument aforesaid, whereby it became infected resulting in blood poisoning

The cause originated before a justice of the peace and the statement filed charges, in substance, that defendant negligently permitted the machine in question to become out of repair so as to be dangerous for use, which defendant knew, or by the exercise of ordinary care would have known; that by reason of the dangerous condition of the machine plaintiff's hand was injured, and because of said injury blood poisoning set in, etc. There was judgment for plaintiff before the justice, and defendant in due time appealed to the circuit court, where a trial was had before the court and a jury, resulting in a verdict for plaintiff. Judgment was entered accordingly, and defendant has appealed to this court.

The evidence discloses that in operating the instrument in question small pieces of cork would remain in the tube after inserting a cork in a bottle, and which had to be removed before the corker was again used. Plaintiff was in the habit of inserting his little finger in the cylinder thereof, in order to remove these pieces of cork. It appeared that there was a small wire contrivance which might be used for this purpose. Plaintiff testified, however, that to use the latter took too much time, and that he was instructed by his foreman to use his finger therefor; the foreman saying, "You have to get it out that way by using your finger."

The plaintiff testified that he knew there was danger in using the instrument in its defective condition; that he objected to using it because of these defects, but that defendant's foreman told him that others were being repaired, and directed plaintiff to use this one until the others were available. The foreman denied that he told the plaintiff to take the pieces of cork out of the tube with his finger, and testified that they could be removed by a stick, or be blown out. He admitted, however, that when using the corker he ordinarily cleaned it out with his finger. He did not deny that plaintiff objected to using the corker in the condition in which it was, or that he told plaintiff, in effect, that another would be supplied him. Another witness, Gustave Riesmeyer, Jr., connected with defendant company, testified that he ordinarily used his finger to remove such pieces of cork from the tube, though it was possible to do so by means of a small stick or wire, or by striking the corker sharply against something.

The assignments of error pertain to the overruling of a peremptory instruction in the nature of a demurrer to the evidence at the close of plaintiff's case, and again at the close of the entire case, and to the matter of giving and refusing instructions.

1. With respect to the court's refusal to give defendant's peremptory instruction in the nature of a demurrer to the evidence, the chief insistence appears to be that the evidence showed that plaintiff was guilty of negligence as a matter of law, precluding a recovery, although it is urged that there was no substantial evidence of negligence on the part of the defendant. As to the latter we may say that it was, of course, defendant's duty to furnish his servant with reasonably safe appliances with which to perform his work, and it would seem that a reasonably prudent man should have anticipated that some injury might occur by reason of the defects in the instrument. "It is not essential that defendant could have anticipated the very injury complained of, or that it would have anticipated that it would have occurred in the exact manner in which it did occur, but it is sufficient if the negligence of the defendant was the proximate cause of the injury." Buckner v. Horse & Mule Co., 221 Mo. loc. cit. 710, 120 S. W 766; Dean v. Railroad, 199 Mo. loc. cit. 411, 97 S. W. 910; Benton v. City of St. Louis, 154 S. W. 477, and cases cited.

2. Appellant insists that the instrument in question was a very simple one, and that any danger therefrom arose from the manner in which it was used, rather than from any defects or deficiencies in the appliance itself. And in this connection we are referred to the recent decision of this court in Harris v. Railroad, 146 Mo. App. 524, 124 S. W. 576, where the injuries in question were received by reason of a defective clawbar, as well as to other cases of that character. But we think that the case before us does not fall within the doctrine of such cases. As pointed out in the Harris Case, there are numerous cases in this state in which the master has been held liable for a negligent breach of his duty in respect to furnishing a reasonably safe appliance, although the latter was simple and for a simple purpose. See Harris v. Railroad, supra, 146 Mo. App. loc. cit. 536, 124 S. W. 576, and cases cited.

It will be seen that in the case to which we have just referred a recovery was denied, on the ground that the danger involved did not inhere in the appliance itself, but arose from the mode and manner in which it was used; the servant voluntarily choosing an unsafe method of using...