Carter v. Wolff.

• Decision Date: 07 June 1927
• Docket Number: No. 19584.,19584.
• Parties: CARTER v. WOLFF.
• Court: Missouri Court of Appeals

296 S.W. 187

CARTER v. WOLFF.

No. 19584.

St. Louis Court of Appeals. Missouri.

June 7, 1927.

Rehearing Denied June 21, 1927.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action for personal injuries, brought by Carye Carter against A. Wolff, doing business as the A. Wolff Iron & Metal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

Mark D. Eagleton, E. Z. Hullverson, and Harry S. Rooks, all of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries sustained by plaintiff while in defendant's employ.

The petition alleges that, while plaintiff was working on a machine that was stopped and motionless, the machinery was suddenly caused to start in motion and to catch plaintiff's hand therein, as a direct result of the negligence and carelessness of the defendant in the following particulars: Failure to guard; failure to furnish and maintain a reasonably safe place for plaintiff to work; negligently causing and permitting the machinery to be started in motion when plaintiff's hands were likely to be injured; failure to warn; and furnishing an incompetent and habitually negligent servant for plaintiff to work with. The answer was a general denial. Plaintiff recovered judgment in the sum of $4,000, and defendant appeals.

The evidence discloses that only three persons were present when plaintiff received his injury, which consisted of having his left hand caught in the machinery, resulting in the amputation of his left thumb about half an inch from the palm of the hand. The three persons were plaintiff, another employee of defendant named Ellis, and a man named Hasseldiek. Hasseldiek was not a regular employee of defendant, but was called in by defendant occasionally for the purpose of assisting in doing some particular work. Ellis did not testify in the case. On the day plaintiff received his injury, it became necessary to change a pulley in one of the derricks owned by defendant and being operated by plaintiff and Ellis. Hasseldiek had some connection with the place where these derricks were manufactured and sold, and he was called in for the purpose of assisting in the adjustment of the derrick. Plaintiff, Ellis, and Hasseldiek were engaged in the work about this derrick. A new pulley was being attached, and plaintiff was tightening some bolts on the machine. The derrick was operated by means of electric power, and there was a switch on a wall about 8 feet from the place where plaintiff was working, where the power could be turned off or on. Plaintiff was the foreman, and Ellis was working under him. Plaintiff had directed Ellis to stay near the switch so as to see that nobody turned on the power while he was working. Neither plaintiff nor Hasseldiek turned on the power, nor did they see who did turn on the power, because they had their backs turned towards the switch, but Ellis was standing there for the purpose of seeing that the power was not turned on. Suddenly the power was turned on, and plaintiff's hand was caught, at which time he received his injury. When plaintiff was injured, Ellis came to him at once and said to him, "Did I ketch you?" Plaintiff testified that there was no way for the machinery to start without Ellis starting it; that Ellis was not drunk that day, but was drinking, but not too much to do his work. Plaintiff said he had never notified Mr. Cohen or Mr. Wolff of the defendant company about Ellis.

Hasseldiek testified substantially as did plaintiff, except that he did not pay any particular attention to any conversation between Ellis and plaintiff.

The evidence offered on the part of the defendant was to the effect that Ellis was not a drunkard but was very efficient in his work; that he had worked for the defendant company for 4½ years, and the vice president said he had never seen him intoxicated, nor had he ever received any complaint in respect to his drinking. Two other witnesses besides the vice president of defendant company testified that Ellis was a careful worker and not addicted to the use of intoxicating liquors.

The defendant insists that its instructions in the nature of demurrers to the evidence should have been given; that plaintiff was not entitled to recover because he was the foreman and Ellis was under his control, and that he knew that Ellis was incompetent and careless, but selected him to do this particular work, and was therefore guilty of contributory negligence as a matter of law. Defendant further states that plaintiff is not entitled to recover, because Ellis, whose act caused his injury, was under the control and management of plaintiff, and was doing the duty assigned to him by plaintiff, and was a fellow servant, so far as the responsibility of defendant is concerned. Both defendant and plaintiff cite and rely upon the cases of Adair v. Kansas City Terminal Ry. Co., 282 Mo....