Conyers v. Krey Packing Co.

• Decision Date: 21 May 1946
• Docket Number: No. 26963.,26963.
• Citation: 194 S.W.2d 749
• Parties: CONYERS v. KREY PACKING CO.
• Court: Missouri Court of Appeals

194 S.W.2d 749

CONYERS v. KREY PACKING CO.

No. 26963.

St. Louis Court of Appeals. Missouri.

May 21, 1946.

Rehearing Denied June 18, 1946.

Appeal from St. Louis Circuit Court; Robert L. Aronson, Judge.

"Not to be reported in State Reports."

Proceedings under the Workmen's Compensation Law by John Conyers, employee, for injuries, opposed by the Krey Packing Company. From a judgment of the circuit court affirming an award, the defendant appeals.

Judgment affirmed.

Joseph N. Hassett and Ernest E. Baker, both of St. Louis, for appellant.

W. D. Shavers, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action wherein plaintiff seeks to recover compensation under the Workmen's Compensation Law for permanent injury to his minor thumb. The commission awarded plaintiff $20 per week for 49.5 weeks, subject to a credit of $317.15 for compensation previously paid. From the judgment of the circuit court affirming the award of the commission, defendant appeals here.

Plaintiff's injury occurred on October 20, 1943. He had been in the employ of defendant for about six weeks. On the day of his injury he worked at the end of a table which was about twenty feet long and about three feet wide. He was engaged in taking hams from a truck and placing them on a conveyor belt which carried them over the table. Other employees stood on each side of the table and injected fluid into the hams with a needle. These employees were known as pumpers. The needles used by the employees were attached to pumping machines. After the hams were needled they were taken to the pickling vats or to the smokehouse. Plaintiff was engaged in needling a ham when he received the injury for which he seeks compensation. While attempting to inject the fluid into the ham the needle slipped and stuck his thumb.

Plaintiff testified that his type of work was general labor; that he did everything; that sometimes he would take meat and hams to the smokehouse; that the hams came straight from the kill; that he would bring the hams from the truck and put them on the conveyor; that all the boys who worked in there were doing the same type of work that he was doing; that the accident happened in the afternoon about seven or eight minutes before quitting time; that he had used the pump before that day several times; that he had used the pump about three days before that day; that the hams he needled that three days prior to the time he stuck his thumb were sent in the regular routine on the truck with the rest of the hams; that they were put in the pickling vats or smokehouse just as other hams that the other men worked on who did needling regularly; that when the needling process was finished a man standing at the end of the table put them in a truck and then they were put in the pickling vats or taken to the smokehouse; that an employee by the name of Otha Bledsoe taught him how to needle hams; that no one objected to him using the needle; that no one instructed him not to use the needle; that he saw a man by the name of Zeke Smith, who worked at putting hams on the table, needling hams; that Zeke was not assigned as a regular needle man, and he needled hams; that no one ever instructed him not to touch the needle and he never heard them tell any one else not to touch it; that he never saw any sign there or anything posted stating not to use the needle; that the men who worked on the pump regularly did not object to his using it; that on the day that he stuck the needle in his hand he had needled two hams, and it was on the third that he stuck his thumb; that he did general labor, did everything, no specific job; that sometimes they would assign him to some of the men up at the pumps and they would help him do something; that he was supposed to study under them to learn the job; that sometimes one of the men would get off the pump and help in putting the hams on the conveyor; that at the time he had the accident there wasn't anybody at the table; that everybody had left to get ready to go; that there was no one at all there doing any pumping, but the pumps were still running; that Bledsoe was not showing him how to do the needling then; that he had learned it then; that Bledsoe taught him how to do the needling on the lunch periods; that Bledsoe was one of the regular needlers; that Zeke Smith was not a regular pumping man; that he had seen him pump hams; that Zeke was doing the same type of work that he did; that Mr. Osborne was the foreman in charge of the work.

Otha Bledsoe testified that he was in the employ of Krey Packing Company on October 20, 1943; that at that time he had been pumping hams about a year; that old pumpers taught him how to pump the hams; that during that time and up to the time of the accident there was no rule or regulation or objection against any of the men there using the pumps; that he taught John Conyers how to use the needle; that no one ever told him not to allow Conyers or any other employee there to use the needle; that before he was a regular pumper there he used the needle himself; that the hams that John Conyers needled went on down in the regular routine; that prior to the day of the accident he had taught John Conyers how to needle the hams; that one man would needle about fifty or sixty hams in an hour; that it would take a man about a minute to needle one ham; that when the pumper would get through pumping the hams then they would do something else; that they would put the hams away and take them to the vats or smokehouse; that they would do the same type of work at times that the laborers would do; that the man who pumped the hams was not classified just as a ham pumper, but he would do other work; that when he went to work out there he started out putting hams on the conveyor and then worked from that up to the pump, and then there were times when there would not be hams to pump and he would do some other kind of work; that when they would not have a laborer there to put hams on the table one of the pumpers would do that; that when he learned how to use the pump and the needle, he was assigned to one of the older pumpers who would show him how to needle the hams, and that this would be while the work was being carried on as usual; that the foreman assigned him to...