Coleman v. Buehner, 33299

Decision Date15 July 1969
Docket NumberNo. 33299,33299
Citation444 S.W.2d 16
PartiesWilliam COLEMAN, Plaintiff-Respondent, v. August BUEHNER, Sr., d/b/a Gus Meat Company, Defendant-Appellant.
CourtMissouri Court of Appeals

Evans & Dixon, Eugene K. Buckley, John P. Fons, St. Louis, for defendant-appellant.

Henderson, Heagney & Snyder, Francis J. Nolan, St. Louis, for plaintiff-respondent.

LYON ANDERSON, Special Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff as a result of defendant's negligence. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $10,000. Defendant has appealed from the judgment.

The case was tried on an amended petition which was in two counts. At the close of all the evidence plaintiff dismissed Count II and submitted the case on the issues raised on Count I, and defendant's answer thereto.

Count I alleged that defendant was engaged in the sale of meat; that on June 5, 1963, plaintiff was lawfully on defendant's premises at the invitation of defendant's agent and servant; that defendant maintained on said premises an electrically powered meat grinding machine, the feeder hole of which was unguarded and which was not reasonably safe for use by business invitees; that due to the negligence of defendant, plaintiff's hand was caused to come in contact with the blades, knives and worm of said machine, whereby plaintiff's hand and all parts thereof were lacerated, torn, emasculated and severed from his left arm. The negligence alleged was in the maintenance of the machine with an unguarded feeder hole, in failing to warn plaintiff of the dangers of the machine, and in locating the machine in a place where it was dangerous to persons rightfully on the premises as was plaintiff at the time he was injured. The petition then set out at great length the injuries sustained and ended with a prayer for damages in the amount of $25,000.

Since Count II was dismissed it will not be necessary to review its allegations. Suffice it to say that Count II was based on the theory that plaintiff was an employee of defendant at the time he was injured. Plaintiff's theory below was and in this court is that he was an invitee on the defendant's premises when he was injured.

Defendant by his answer admitted he operated the meat shop as alleged by plaintiff in his petition but denied each and every other allegation therein contained. As an affirmative defense defendant pled that whatever injuries, if any, plaintiff sustained on the occasion in question were directly caused or contributed to by plaintiff's own negligence.

Among the many points relied on by defendant on this appeal is that the trial court erred in overruling his motion for a directed verdict at the close of the whole case. In support of this contention it is urged that plaintiff failed to make a case for the jury on the issue submitted; and that plaintiff was guilty of contributory negligence as a matter of law. We think these contentions should be sustained. Therefore, it will not be necessary to consider the other points relied on by defendant.

In passing on the issues presented we will consider only facts and circumstances shown by the evidence which are favorable to plaintiff, and give plaintiff the benefit of all reasonable inference which may fairly be drawn therefrom. We will disregard defendant's evidence, unless it aids the plaintiff's case. Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124; Price v. Nicholson, Mo., 340 S.W.2d 1, 95 A.L.R.2d 599; Johnson v. Missouri-Kansas-Texas Railroad Company, Mo., 334 S.W.2d 41.

In reviewing the contention that plaintiff failed to make a submissible case of negligence we will confine ourselves to the issue submitted by plaintiff's verdict directing instruction. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91.

By said instruction the jury was authorized to find for plaintiff if they believed there was an unguarded meat grinder located at a place where it was not reasonably safe, for persons using it, which condition plaintiff did not and, by using ordinary care, could not have known; that defendant knew or by using ordinary care could have known of said condition, and failed to use ordinary care to warn plaintiff of it; and that as a direct result of such failure, plaintiff was injured.

Defendant owned and operated a meat company known as Gus Meat Company located at 8509 Rosemary Avenue in St. Louis County. There he sold dressed meat and meat products to the public on a wholesale and retail basis. There were two parts to this building. In the front was the retail shop and in the rear the food processing department. In the latter there were freezers where meat was stored, and various machines including an electric grinding machine attached to a table located in the northeast corner of the room. The surface of the table was stainless steel. There was a hole or opening in the table five or six inches in diameter, through which meat was fed into the grinder after it had been cut into small pieces by the person operating the grinder. The hole into which the meat was placed was at the corner of the table next to the wall. The grinding mechanism was about a foot below the surface of the table and was located on a stool. On the north wall within easy reach of the operator was a safety device consisting of two buttons. To turn off the grinding machine the black button is pushed. The other button is red and turns on the machine. There was no guard over the opening in the table through which the pieces of meat were dropped.

Defendant is the sole owner of the business. His two sons, August Buehner (known as Gus, Jr.) and Richard Buehner were the only employees at the meat company. Gus, Sr., also worked there.

On June 5, 1963, plaintiff while working at the table placed his hand through the opening in the table while the grinding machine was in operation, and received serious injury resulting in the loss of several fingers.

Nicholas M. Blassie, Executive Director of Labor Food Council of Greater St. Louis, and former president of the Meat Cutters Union testified he had worked with and was familiar with various types of meat cutting machines; that he had dismantled and reassembled such machines thousands of times; that guards were available for such machines; and that it was the practice of the trade to use them at all times while the machine was being used.

Gus Buehner, Jr., testified that originally there had been a guard on the machine in question, but after the stainless steel table was put in the elevation of the table surface above the grinder was such that it was believed a guard was not required. The worm or grinding device was located in a horizontal position about one foot below the surface of the table. The worm is a spiral device which grinds and pulverizes the meat and pushes it toward the knives and seive-like plate at the end of the machine.

There was an air conditioner located on the north wall near the ceiling, above and slightly west of the meat grinder. The front was rounded in shape and extended outwardly from the wall about two feet. It was about seven or eight feet from the floor. The top was against the ceiling. It had a fan that would drawn in air and throw it out. It had been repaired by putting motors in it, but the record does not show when that was done. It was in operation on June 5, 1963, when plaintiff was injured. Plaintiff testified that the air conditioner 'spit water' when he was working the meat grinder. Plaintiff never complained to any one about this. Gus, Jr., plaintiff's witness, testified that the air conditioner was equiped with a pipe to drain condensation or moisture and carry it into another room and that he had never had any water from the air conditioner hit him while he was working at the table.

Plaintiff, William Coleman, was fifty-six years old at the time of the trial (Jan. 29, 1968). When a child he attended a public school in St. Louis for a short period of time, after which he was sent to a special school for handicapped children because he was not able to speak plainly. Later, on account of truancy, he was sent to the St. Louis Training School on Bellefontaine Road. His sister testified that he could read and write, but could not figure too well.

At the time of his accident, June 1963, plaintiff was regularly employed as a waiter and custodian at a restaurant-tavern known as the Ten Mile House, located at Gravois and Rock Hill Road in St. Louis County. His salary at that time was $25.00 per week and his working hours were from 6:00 A.M. to 10:30 A.M. or noon. He had previously worked at the Post Office as a custodian for seven years.

Plaintiff was acquainted with defendant's son, August C. Buehner, Jr., (referred to as Gus, Jr.). Gus, Jr., worked for defendant as a driver and salesman. Gus, Jr., also owned and operated a barbecue stand on Tesson Ferry Road in St. Louis County. He would work at the barbecue stand in the afternoon when off duty at Gus Meat Company. He would work there until midnight or 12:30 A.M. Plaintiff testified that he began working for Gus, Jr., at the meat company and at the barbecue stand about two years before he had his accident. He stated he would arrive at the barbecue stand about four o'clock in the afternoon and work there until closing time at midnight. His duties were to barbecue ribs. Plaintiff further testified that he also had, at the request of Gus, Jr., worked at the meat company during this period of time. His duties were to clean the floor, burn the trash and grind hamburger. He stated he did not have regular working hours at the meat company, but would work in the afternoon after he quit work at the Ten Mile House which was around 12 o'clock. He would go to the meat company three or four times a week. He was paid $1.00 per hour by Gus, Jr., who obtained the money from a cash box in the retail portion...

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