Curtright v. Ruehmann

• Decision Date: 03 March 1914
• Citation: 181 Mo. App. 544,164 S.W. 701
• Parties: CURTRIGHT v. RUEHMANN et al.
• Court: Missouri Court of Appeals

164 S.W. 701

181 Mo. App. 544

CURTRIGHT v. RUEHMANN et al.

St. Louis Court of Appeals. Missouri.

March 3, 1914.

1. EVIDENCE (§ 481)—NONEXPERTS — SAFETY DEVICES.

Where plaintiff, who was injured by a piece of flying steel from a clipping stand in a junk shed, claimed that defendant was negligent in failing to provide screens or barriers around the stand, evidence of a nonexpert that the screens or barriers could have been erected on two sides of the stand without interfering with the work, and that such protection was all that was necessary, because the chips mostly flew sideways, was admissible.

2. MASTER AND SERVANT (§ 265)—INJURIES TO SERVANT—PERFORMANCE OF WORK—CUSTOMARY METHOD—PRESUMPTIONS.

While a master, in an action for injuries to a servant, is entitled to the presumption that he has performed his duty until the contrary appears, such presumption only casts the burden on plaintiff to show negligence, and does not raise a further presumption that the master was conducting his business at the time of the accident in the usual and customary manner.

3. MASTER AND SERVANT (§ 265)—INJURIES TO SERVANT—BURDEN OF PROOF—PRESUMPTIONS.

While an injured servant must show prima facie the nonfulfillment of some duty of the master in order to recover, the servant need not prove that the manner of conducting the business at the time of the injury was not in accordance with the usual customs, but, having proved some negligence of the master in failing to furnish a safe place to work, or facts reasonably justifying an inference of the master's neglect in that regard, the general presumption that the master had performed his duties was overcome and a prima facie case established.

4. MASTER AND SERVANT (§ 278)—METHOD OF WORK—DEFENSES.

Common usage as to methods of work is a defense to an action for injuries to a servant as a matter of law only where the evidence that there is such a usage is clear and undisputed.

5. MASTER AND SERVANT (§ 286)—INJURIES TO SERVANT — NEGLIGENCE — SAFETY DEVICES —QUESTION FOR JURY.

In an action for injuries to a servant in a junk shed by being struck by a flying piece of metal from a clipping stand, whether defendant was negligent in failing to erect screens or barriers on two sides of the stand to protect other workmen was for the jury.

6. MASTER AND SERVANT (§§ 101, 102)—INJURIES TO SERVANT—SAFE PLACE—SAFETY APPLIANCES —DUTY OF MASTER.

While a master is not an insurer against danger to the servant, and need not adopt the safest and best methods of prosecuting the work, he must adopt a method that is reasonably safe and must furnish a reasonably safe place for his employés to work by the adoption of precautions to prevent injuries which a reasonably prudent man would have anticipated as likely to befall employés by reason of the manner in which the work was conducted.

7. MASTER AND SERVANT (§ 226)—INJURY TO SERVANT—ASSUMED RISK—MASTER'S NEGLIGENCE.

Where a servant at work in a junk shed was injured by being struck by a flying piece of metal from a clipping stand, he did not assume the risk of the master's negligence in failing to

take reasonable precautions to prevent such injuries by the erection of suitable screens or barriers.

8. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE.

Where plaintiff, an employé in a junk shed, was injured by a flying piece of metal from a clipping stand, his knowledge that some danger from flying missiles inhered in the place he was required to work, which was some distance from the stand, did not charge him with contributory negligence as a matter of law in continuing to work there.

9. MASTER AND SERVANT (§ 276)—INJURIES TO SERVANT—NEGLIGENCE OF FELLOW SERVANT —PROXIMATE CAUSE.

Where plaintiff, an employé in a junk shed, was injured by being struck by a piece of steel, flying from a clipping stand, evidence that the direction in which the chips or pieces would fly from the stand depended considerably on the way in which the cutting chisel was placed and held by those engaged in the act of cutting did not show that the proximate cause of plaintiff's injury was the negligence of fellow servants engaged in cutting, rather than the failure of defendant to provide suitable screens about the stand.

Reynolds, P. J., dissents.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney, Judge.

Action by Henry E. Curtright against Robert Ruehmann and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded. Case certified to Supreme Court on division.

Frank Kelly, of Cape Girardeau, for appellant. Watts, Gentry & Lee, of St. Louis, for respondents.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the employ of defendants as their servant. The trial court, at the close of plaintiff's case, gave a peremptory instruction, at defendants' request, directing a verdict for defendants. Pursuant to such instruction a verdict was returned accordingly, and, after unsuccessfully moving for a new trial, the plaintiff appealed to this court.

Defendants are engaged in the "junk" business in the city of Cape Girardeau. At the time here in question their business was conducted in a large shed, where parts of old machinery were separated, old iron cut up, etc., in preparing the same for shipping. In prosecuting this work defendants, among other things, had three "clipping stands," each consisting of a large piece of metal used as an anvil, at which two men worked, one holding a chisel to which was attached a handle, and the other wielding a large sledge hammer. The evidence shows that in the process of thus cutting up pieces of iron, with chisel and sledge, chips or pieces of such metal would frequently fly into various parts of the shed. Plaintiff, it seems, had been in defendants' employ working in and about this shed, for some weeks, and had worked there before, "off and on," for perhaps five or six months in all. Sometimes he worked at a clipping stand, and sometimes he did other work. When injured he was engaged in carrying scrap iron to a machine called the "cutting machine," and passing back and forth through the shed. At the time two other employés of defendants were working at a clipping stand, cutting a shaft of some kind, with chisel and sledge, in the manner above described. While plaintiff was thus passing through the shed, some considerable distance from the clipping stand, a piece of iron flew from the latter, striking him and cutting a gash in his head. The wound appears not to have been in itself an extremely serious one, but it seems that it became infected thereafter, with serious consequences.

Plaintiff's cause of action proceeds upon the theory of negligence on the part of the defendants in failing to furnish plaintiff with a reasonably safe place to work. The alleged negligence of defendants upon which the action is founded consists in maintaining clipping stands in close proximity to employés engaged in other work in the shed, and in failing to erect "guards, fenders, or barriers to arrest and keep said pieces, parts, chunks, or slugs of iron from flying about and striking anywhere and everywhere among the employés, which should have been, and could have been, done, and said place thereby rendered reasonably safe." The answer is a general denial. In conducting defendants' business it was necessary to cut up or break old pieces of machinery, shafts, etc., and in doing this with chisel and sledge, chips or pieces of iron would necessarily fly from the clipping stands. In this connection it may be further said that there was testimony to the effect that in doing this work the manner of holding or placing the chisel had something to do with the direction in which the chips would fly. The latter, it seems, could be controlled, to some extent, by the men working at the clipping stand. The piece of iron which flew and struck plaintiff was a portion of a band, or collar, which was being cut from about a shaft. It appears that the blow which severed it caused one part of it to fly; that the latter struck plaintiff, cutting his head, and, glancing off, continued on its way and struck the wall just above the cutting machine, cutting a deep gash in the wall. That the flying piece first struck plaintiff and then the wall is to be inferred from the testimony of the witnesses Hersinger and Davie, the men working at the clipping stand. The latter said "I remember just about when the particular band came off; part of that piece of iron went whistling away across the shed, somewhere the way Mr. Curtright was walking; I did not see it to be sure, but I heard it strike, and it sounded to me like it struck something first; it struck the wall right over the machine, and we looked after he got hurt, and heard the report of the iron hit the wall. We went and looked, and it cut a deep gash in the wall." Hersinger said: "I heard it strike. * * * I don't remember that I heard it hit him but I heard it strike something. I don't know whether I heard it strike the partition wall of the motor shed after the first strike—I heard it strike something, but I don't know whether it was the wall or his head. I do not remember seeing the piece that flew."

I. It would seem that the use of clipping stands, in the shed in question, in the prosecution of defendants' business, would not of itself constitute negligence on defendants' part, and that the only actionable negligence, if any, with which defendants can be here chargeable must consist in their failure to provide screens or guards in connection with such clipping stands, or to in some manner isolate them from the workmen engaged in performing other work, for the purpose of preventing injury to employés by flying chips or pieces of metal. On this question a witness for plaintiff, who was working at the clipping stand when plaintiff was injured, testified that screens or barriers could have been erected about two sides of the clipping...