Burge v. American Car & Foundry Co.

• Decision Date: 07 July 1925
• Docket Number: No. 17896.,17896.
• Parties: BURGE v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

274 S.W. 842

BURGE v. AMERICAN CAR & FOUNDRY CO.

No. 17896.

St. Louis Court of Appeals. Missouri.

July 7, 1925.

Rehearing Denied July 21, 1925.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by Charles Burge against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed.

Watts & Gentry, of St. Louis, for appellant.

Foristel & Eagleton of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant. Plaintiff recovered a verdict and judgment for $3,000, and the defendant has appealed.

The petition alleges negligence on the part of the defendant in five particulars. They are, in substance: (1) That the defendant negligently ordered plaintiff to work at a machine when it was known to the defendant that plaintiff was inexperienced and not familiar with the dangers involved; (2) a failure to guard the machine; (3) negligently causing the power to be prematurely started; (4) that defendant should have known that plaintiff would likely have his hand in such position as to be injured by the machine, but, notwithstanding, caused the power to be applied; and (5) that defendant negligently failed to warn plaintiff of the fact that the power was to be applied.

The answer is a general denial.

Plaintiff testified that he had been working for the defendant company most of the time since he was 12 years old, and at the time of the injury he was 21 years of age. He was engaged ordinarily in taking rivets from the furnace and pitching them to a workman. On April 15, 1920, he said he was directed by one Seeholtz, the foreman, to work with two men on the reamer. He said the foreman told him that Eugene Hudgins, who was working on the reamer, would show him what to do. Plaintiff testified that he received orders from Hudgins, yet he did not say what orders or instructions were ever given him by Hudgins. He said that, as he was about to place the bit of the reamer in a hole to be reamed, the bit being about 10 or 12 inches from the hole, the shaft in his grasp suddenly started revolving and caught his glove, and thereby twisted his arm and injured it. He said he was unable to tell who turned on the power; that he was a ware of the danger of holding the shaft when the power was turned on. There is no evidence that we can find in the record that Hudgins ordered him to use the bit, or that he gave him any orders whatsoever. It was customary for plaintiff to give the signal before the power was turned on, anti it is his version that the reamer began revolving without a signal from him. He stated that the two men working with him at the reamer were Hudgins and one Ira Terry.

Hugh Laney was called as a witness for Plaintiff, and he testified that, while his name was Laney, he was in fact the man referred to by plaintiff as Ira Terry. He said he had worked at the plant only three days before plaintiff was injured, and that during that time Hudgins had handled the switch with which the power was turned on, and that Hudgins gave orders to the other men, but that Hudgins was the one who always turned on the switch. He said he quit work there two days after the accident. He testified that he was not known at any other place where he worked by the name of Ira Terry, but on all other occasions used his true name of Hugh Laney. This witness said he saw the accident; that all three men, that is, Hudgins, he and the plaintiff, carried the reamer from one place to another, and that plaintiff was the one to give the signal when he was ready to have the switch turned on. He stated that on this occasion no signal was given before the power was turned on.

The other witnesses for plaintiff were physicians who testified as to the character and extent of the injury.

The defendant produced a witness, one Ben G. Kunz, who was an investigator for the defendant. This witness stated that he interviewed Ira Terry with reference to the accident, and that the Ira Terry he interviewed was not Hugh Laney who testified for plaintiff. An effort was made to secure the attendance of Eugene Hudgins, but he had left the employ of defendant, and could not be found. After the trial had progressed, and after Laney had testified, witness Kunz located the Ira Terry who, he said, had worked at the plant with plaintiff.

Witness Wm. Edward Meyer testified for defendant that he was timekeeper for the company, and had been there for 9 years, and that he knew Ira Terry. While this witness was on the stand, Hugh Laney, who had represented himself to be Ira Terry, was pointed out to him, and the witness swore positively that Laney was not Ira Terry; that he knew Ira Terry well; that he had checked him in his work several times a day for a long period of time.

Witness John Hines, the employment agent for the defendant, testified that he knew Ira Terry. Again Laney was required to stand up for the inspection of this witness, and Meyer testified that he was not Ira Terry.

Then the defendant produced Ethel McDowell, who testified that she was a sister of Ira Terry. Laney was pointed out to her, and she stated positively that he was not her brother, and that she had never seen him before. She pointed out her brother, Ira Terry, as being the man who worked for the defendant at the time of the accident.

The defendant called on the witness stand Ira Terry, who gave his name as Ira Murphy Terry, and who testified that he was no longer working for the company, but that he he had been employed by defendant at the time plaintiff was injured, and that he was in fact the man Ira Terry who was working on the reamer at the time. He testified that he worked on the end of the handle that had the electric lever on it, and that it was his duty to run the reamer, and that he was the man who operated the switch which turned the power on and off. He said that three men were required to handle the reamer ; that the extension shaft revolved and turned the bit, and when in operation one man directed same from one hole to another; that at the time of the accident plaintiff had hold of the extension, directing it from one hole to another. Terry shut the power off until plaintiff placed the bit in another hole, and when plaintiff took hold of same to place it in another hole the power was turned off; that at the time of the accident plaintiff had put the bit in a new hole, and that he, the witness, did not turn the power on until the bit was in the hole. He stated that the third man, Hudgins, was on the other end of the handle, which would be the right hand, while he, Terry, was on the left.

At this stage of the proceedings Laney was asked to stand up, and witness Terry stated he thought he had seen him before, but had never known him by the name of Terry. He said that at the former term of court he had been subpœnaed as a witness, but that the case was continued, and that before this trial he had moved his residence and was not served with a subpœna for the trial; that he had learned about noon the clay of the trial that the case was on, and that he came to court at the request of his sister to testify. Reverting to the accident, he said that he was the man who operated the lever, and that immediately before turning on the power on this occasion he did not receive a signal of any kind from the plaintiff ; that he could see over plaintiff's shoulder, and he saw that the bit was in the hole; that at the time he turned on the power, plaintiff's hand was just leaving the extension bit, and his thumb and fingers were caught around the shaft. He also testified that he did not give any warning, saying that the reason for this was that he turned on the power because the men generally took...