Curtright v. Ruehmann
| Decision Date | 03 March 1914 |
| Parties | HENRY E. CURTRIGHT, Appellant, v. ROBERT RUEHMANN et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court Common Pleas.--Hon. R. G. Ranney Judge.
REVERSED AND REMANDED. CAUSE CERTIFIED TO SUPREME COURT.
Judgment reversed and cause remanded. Case certified to Supreme Court.
Frank Kelly for appellant.
(1) Plaintiff's grounds of negligence is that the defendants (1st) erected, kept and maintained the clipping blocks in such close proximity to the employees and caused the chipping to be done so close to them that their place of work was not reasonably safe; (2nd) that defendants failed, neglected to erect any guards, fenders or barriers to arrest the flying pieces of iron. If there was any negligence at all on either of the above charges, however slight, it was a case for the jury and not for the court. Steube v. Iron & Foundry Co., 85 Mo.App. 640; Booth v. Kansas City & Ind. Air Line Railway, 76 Mo.App. 516; Chouquette v. So Elec. Ry. Co., 80 Mo.App. 515. (2) In determining whether plaintiff has made a case entitling him to go to the jury, the appellate court must give him the benefit of the testimony most favorable to him, and allow every reasonable inference in his favor. Hurst v. Mining Co., 160 Mo.App. 53; Morgan v. Mining Co., 160 Mo.App. 99; Holman v. Iron Co., 152 Mo.App. 672. (3) Putting up a simple screen would have arrested the flying particles of iron and saved the plaintiff the injury, and if this could be done it was negligence to fail to erect them. Thein v Brecht Buthers Supply Co., 116 Mo.App. 1; Curtis v. McNair, 173 Mo. 270. (4) Much emphasis was laid on the fact that Hersinger, who testified a barrier would not have interfered with the chipping, was not an expert. It was not a question which admitted of expert evidence. Edwards v. Barber Asphalt Paving Co., 92 Mo.App. 221; McAnany v. Henrici, 238 Mo. 103.
Watts, Gentry & Lee for respondents.
(1) The court did not err in giving a peremptory instruction to find for defendants, and the judgment of the court should be affirmed. There was no negligence shown on the part of the defendants. The master is not obliged to conduct his business according to the newest possible method nor to adopt the latest appliances invented, but not yet put into general use, nor to invent appliances not yet invented for the protection of his servants. If he conducts his business in the usual manner that is all that can be required of him. Chrismer v. Bell Telephone Co., 194 Mo. 208; Minnier v. Railroad, 167 Mo. 119; Wilkinson v. Andriano Bottling Co., 154 Mo.App. 563; Brands v. St. Louis Car Co., 213 Mo. 698; Coin v. Lounge Co., 222 Mo. 488; Sutherland v. Garretson, Greason Lumber Co., 149 Mo.App. 338. (2) The master is presumed to have done his duty--presumed to have exercised ordinary care, which is such care as reasonably prudent men engaged in the same business usually exercise. Hence it was not incumbent upon defendants to show that they conducted their business as reasonably prudent men engaged in such business conduct such business, but the burden was upon the plaintiff to show a failure on the part of defendants to conduct their business as reasonably prudent men usually conduct such business. Plaintiff having failed to offer any evidence on that subject the court will presume that the business was conducted in a reasonably careful manner and in accordance with the custom of reasonably prudent men engaged in such business. Yarnell v. Railroad, 113 Mo. 579; Lenox v. Harrison, 88 Mo. 491; Glasscock v. D. G. Co., 106 Mo. 664; Elliott v. Railroad, 204 Mo. 14. (3) If negligence on the part of anybody caused plaintiff to be hurt, it was negligence of his fellow servants who were engaged in chipping a piece of steel and who caused it to fly and strike plaintiff on the head. The evidence offered by the plaintiff himself showed that the man who held the chisel could have controlled the direction in which flying particles would go. He should have held the chisel so as to throw the particles in some other direction rather than toward the plaintiff. There can be no sort of doubt but that the plaintiff and the men working at the clipping block were fellow-servants. (4) There was no evidence whatever tending to show that any practical device had ever been invented which could be used to protect plaintiff from flying missiles without interfering with the work and without endangering the men engaged in the chipping. It is true that a nonexpert witness testified that a screen would not have interfered with the work, but his testimony should not be considered because it was improperly admitted. He knew nothing whatever about such appliances. If it was a matter for expert testimony he was incompetent because he showed he was not an expert, and if it was not a matter for expert testimony the matter should have been left to the jury without presenting the opinion of this nonexpert witness. McAnany v. Henrici, 238 Mo. 112.
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 defendant's 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 employees 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 employees 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 employees, 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: Hersinger said:
I. It would seem that the use of clipping stands, in the shed in question,...
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