O'Brien v. Western Implement Mfg. Co.

• Decision Date: 07 February 1910
• Citation: 125 S.W. 804,141 Mo.App. 331
• Parties: EDWARD J. O'BRIEN, Respondent, v. WESTERN IMPLEMENT MFG. CO., Appellant
• Court: Kansas Court of Appeals

125 S.W. 804

141 Mo.App. 331

EDWARD J. O'BRIEN, Respondent, v. WESTERN IMPLEMENT MFG. CO., Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1910

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

Cause reversed and remanded.

Warner Dean, McLeod & Timmonds for appellant.

(1) The court committed error in overruling defendant's demurrers to the evidence, and in refusing its peremptory instruction directing a verdict in its favor. Meyers v. Glass Co., 129 Mo.App. 556; Marshall v. Hay Press Co., 69 Mo.App. 256; Hicks v. Railroad, 46 Mo.App. 304; Cox v. Granite Co., 39 Mo.App. 424. (2) The verdict is excessive. Notwithstanding plaintiff had two physicians--a woman and a man--he only used the woman as a witness and objected to defendant's using the man, and that objection was by the court sustained. But a reading of all the testimony in behalf of plaintiff, including that of his woman physician, forces the conclusion that he was not hurt twelve hundred dollars worth. There is no allegation of loss of time, nor any proof of value of services. The testimony of his woman physician, attributing his convulsions, in April, 1907, to the stroke on his hand in July, 1906, notwithstanding she could discover nothing the matter with the hand, and her testimony that the pain would run up the left hand to the heart, and down to the stomach is incredible and unworthy of belief, even though an "array of witnesses" might testify thereto. Weltmer v. Bishop, 171 Mo. 116. In this connection see, also, the following cases: Champagne v. Hamey, 189 Mo. 726; State v. Huff, 161 Mo. 487; State v. Francis, 199 Mo. 671; Wray v. Electric Light Co., 68 Mo.App. 389. (3) The court committed error in the admission and the exclusion of testimony. Under this point, we shall call attention to such additional rulings as we deem erroneous, specifying them separately, under alphabetical headings, as A, B, C, etc. (4) An employer is not an insurer of the safety of his appliances; he is required only to exercise ordinary care to provide reasonably safe appliances. Bennett v. Lumber Co., 116 Mo.App 699; Hester v. Dold Packing Co., 84 Mo.App. 454; Elliott v. Railroad, 67 Mo. 274; Covey v. Railroad, 86 Mo. 641; Pavey v. Railroad, 85 Mo.App. 221; Current v. Railroad, 86 Mo.App. 62; Breen v. Cooperage Co., 50 Mo.App. 202; Howard v. Railroad, 172 Mo. 531; Brewing Co. v. Talbot, 141 Mo. 674; Curtis v. McNair, 173 Mo. 270; Trigg v. Sand Co., 187 Mo. 227.

W. F. Zumbrunn for respondent.

(1) The appeal should be dismissed for the reason that the affidavit of appeal was made by Judge Timmonds, one of the attorneys for the appellant, and the affidavit for appeal attested by Mr. Langworthy, as notary public, one of the attorneys for the defendant. Smith v. Ponath, 17 Mo.App. 262; State v. Noland, 111 Mo. 473. (2) If an affidavit for an appeal is made before an attorney for appellant it is an irregularity that is fatal unless waived, and the appellee elects not to waive his right. Smith v. Ponath, supra; State v. Noland, supra. (3) Again, the verdict is for the right party. It was negligence per se to place the plaintiff to work between fixed or traversing parts of machinery operated by steam, the plaintiff being a minor, and it was in contravention of section 6434, Revised Statutes 1899; and the defense of assumption of the risk and contributory negligence cannot prevail where the master, in the face of a positive statute and against the strict mandate of statute, puts a minor to work. Blair v. Heibel, 103 Mo.App. 621; Stafford v. Adams, 113 Mo.App. 717. (4) Defendant's demurrers to the evidence at the close of plaintiff's case, and to the evidence at the close of the whole case were properly overruled. R. S. 1899, sec. 6434; Blair v. Heibel, supra; Lore v. Mfg. Co., supra; Stafford v. Adams, supra; Nairn v. National Biscuit Co., supra. (5) The minute that a servant entertains fear of safety and protests to his employer, who assures him that the work is safe and directs him to return to work, just that minute is the responsibility shifted from the servant to the master. Halliburton v. Railroad, 58 Mo.App. 27; Thorpe v. Railroad, 16 S.W. 206; Curtis v. McNair, 173 Mo. 270; McGowan v. Railroad, 61 Mo. 528; Doyle v. Trust Co., 140 Mo. 41. (6) It is the master's duty to furnish the servant with reasonably safe and sufficient machinery and appliances to do the work required, and if the master neglects his duty in this respect he will be liable to the servant for any injury growing out of such failure. Craig v. Railroad, 54 Mo.App. 523; Gibson v. Railroad, 46 Mo. 163; O'Niel v. Young & Sons, etc., 58 Mo. 628; McCready v. Stepp, 104 Mo.App. 340; Beard v. Car Co., 73 Mo.App. 583; Sield v. Railroad, 82 Mo. 430; Porter v. Railroad, 71 Mo. 76.

OPINION

BROADDUS, P. J.

This suit is to recover damages, for injuries plaintiff received because of failure on the part of defendant, to furnish him with a reasonably safe appliance with which to do his work.

The plaintiff was eighteen years of age at the time of the alleged injury and had been in defendant's employ for three years, during which time he had been engaged in drilling holes in castings and tapping them so that they could be bolted onto cultivators, which defendant was engaged in manufacturing. The manner of drilling the holes was to place the casting in what was called a "jig" which held the casting to a plate underneath the drill. The holes were drilled through the casting by a drill press operated by steam. When the holes were drilled, they were tapped, that is had threads cut into them.

Plaintiff testified that he knew how and had been engaged in tapping the castings about a year before he was injured; that previously he had been engaged in drilling, and that his experience in that work had qualified him to do the work of tapping. The two kinds of work were done by the same machine. The difference was that in drilling a bit was used, that made a smooth hole through the casting, while in tapping a tap was used to cut threads on the inside of the smooth hole. He further testified that generally these castings were held in place while being drilled or tapped by a jig; that he was put to work on the 15th day of July, 1906, tapping without the use of a jig to hold the casting in place; that these castings were much harder than those he had formerly drilled or tapped; that in dispensing with the jig the person operating the machine had to hold the castings in place with his hands; that he told the foreman that he did not consider it safe to do the work in that manner, but that the foreman told him that it was perfectly safe, and showed him how and tapped several castings. In answer to a question he said: "I knew when I tried to drill them that they were very hard; I went to him (the foreman) before I tapped them when he gave me orders to tap them, and told him that I was afraid of them, that they were very hard in drilling them and I didn't think they could be tapped. He says, 'I can do it,' and he stood there and tapped three of them--one of them got away from him, he tried another and it was all right. He says, 'Go ahead, you can do it, it is all right,' and I tried to." The plaintiff stated that there was a jig in the shop, but that it was not suitable on account of a change in the manner in which the holes were drilled in the castings, and because it was not strong enough. Then he was asked if he had informed the foreman of that fact, and he answered yes. "Q. What did he say to you, if anything? A. He says, I will show you, we can do it with our hands. Q. What reply did you make to him if any? A. I said I wouldn't do them first, that I wanted to see, I didn't think they could be did that way. Q. What do you mean by that way? A. Holding them with his hands."

Plaintiff then began work and tapped one successfully, but the second one he essayed flew out of his hands. His description of the manner it acted was: "The casting got away from me, and before I could get away from it, it hit me three times, hit me on the hand, and I stumbled...