Bliesner v. G. Riesmeyer Distilling Company

• Decision Date: 06 May 1913
• Parties: PAUL BLIESNER, by Next Friend, Respondent, v. G. RIESMEYER DISTILLING COMPANY, Appellant
• Court: Missouri Court of Appeals

157 S.W. 980

174 Mo.App. 139

PAUL BLIESNER, by Next Friend, Respondent, v. G. RIESMEYER DISTILLING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 6, 1913

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

Judgment affirmed.

Schnurmacher & Rassieur and Wilfred Hearn for appellant.

(1) The demurrer to the evidence should have been sustained: (a) Because there was no substantial evidence of negligence on the part of the defendant. The tool was simple, the use to which it was to be put was simple and the alleged danger apparent and known to plaintiff. Halloron v. Iron Foundry Co., 133 Mo. 470; Blundell v. Manufacturing Co., 189 Mo. 552; Boring v. Medart, 56 Mo.App 443; Crismer v. Bell Tel. Co., 194 Mo. 209; Mathis v. Stock Yards Co., 185 Mo. 447; Steinhauser v. Spraul, 127 Mo. 562; Harris v Railroad, 146 Mo.App. 524; Blanton v. Dold, 109 Mo. 64; Fugler v. Bothe, 117 Mo. 475; Moore v Wire Mill Co., 55 Mo.App. 491; Watson v. Coal Co., 52 Mo.App. 366; Nolan v. Shickle, 3 Mo.App. 300; Lewis v. Railroad, 76 Mo. 86; Dutzi v. Geisel, 23 Mo.App. 676. (b) Because the proof shows that the injury complained of was due to plaintiff's own contributory negligence. Stegmann v. Gerber, 146 Mo.App. 104; Epperson v. Cable Co., 155 Mo. 346; Doerr v. Brewing Assn., 176 Mo. 547; Fugler v. Bothe, 117 Mo. 475; Holloran v. Iron & Fdy. Co., 133 Mo. 470; Knorpp v. Wagner, 195 Mo. 637; Holmes v. Bradenbaugh, 172 Mo. 53; Harris v. Railroad, 146 Mo.App. 542; Hogan v. Railroad, 150 Mo. 36; Lucey v. Oil Co., 129 Mo. 32; Winkler v. Basket Co., 137 Mo. 394; Junior v. Power Co., 127 Mo. 82. (c) Because there was a safe method of removing the pieces of cork, yet plaintiff chose another method, admitted by him to be dangerous. Montgomery v. Railroad, 109 Mo.App. 88; Harris v. Railroad, 146 Mo.App. 524; Anderson v. Box Co., 103 Mo.App. 382; Moore v. Railroad, 146 Mo. 572; Smith v. Box Co., 193 Mo. 715; Holmes v. Brandenburg, 172 Mo. 66. (2) The court erred in giving instruction No. 1 at its own motion. (a) Because it purports to be complete in itself and authorizes a recovery upon a finding of the facts therein set forth, regardless of the other facts necessary under the law to entitle plaintiff to a recovery; and it also ignores the defense of contributory negligence in support of which proof was offered. Shoe Co. v. Lisman, 85 Mo.App. 340, 344; Flucks v. Railroad, 143 Mo.App. 17; Ross v. Railroad, 132 Mo.App. 472. (b) Because it authorizes a recovery upon a finding merely that the tool in question was defective, when the master's duty is satisfied by furnishing tools which are reasonably safe. Glasscock v. Dry Goods Co., 106 Mo.App. 657. (c) Because it submitted to the jury an issue not justified by the pleadings and evidence, viz., that of a promise to repair and reliance thereon inducing plaintiff to continue the use of the tool. Coin v. Lounge Co., 222 Mo. 489; Holloran v. Iron & Fdy. Co., 133 Mo. 470; Ryan v. Box Co., 156 Mo.App. 693; Yerkes v. Railroad, 88 N.W. 33. (3) Because the court refused to give, at the request of defendant, its instruction No. 5, and in giving the same as modified by the court. Glasscock v. Dry Goods Co., 106 Mo.App. 663; Holloran v. Iron & Foundry Co., 133 Mo. 470.

George A. Davis and A. C. Ketring for respondent.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

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 twenty 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 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, 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.

I. 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. 700, 710, 120 S.W. 766; Dean v. Railroad, 199 Mo. 386, 411, 97 S.W. 910; Benton v. City of St. Louis, 154 S.W. 473, 477, and cases cited.]

II. 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, l. c. 536, 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 it rather than a safe one. It is urged that this is true in the case before us, in that plaintiff's injury resulted from using his finger to remove pieces of cork instead of adopting another means for so doing; but we think that the facts take the case out of the doctrine to which we have just alluded. This for the reason that there was evidence from which it may be reasonably inferred that plaintiff was expected and required to use the instrument in question in the manner in which he did. It appears that this was the way in which such pieces of cork were ordinarily removed, and plaintiff testified that he was instructed by...