Denkman v. Prudential Fixture Co.

• Decision Date: 31 December 1926
• Docket Number: No. 25833.,25833.
• Citation: 289 S.W. 591
• Parties: DENKMAN v. PRUDENTIAL FIXTURE CO.
• Court: Missouri Supreme Court

289 S.W. 591

DENKMAN v. PRUDENTIAL FIXTURE CO.

No. 25833.

Supreme Court of Missouri, Division No. 1.

December 31, 1926.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Christian O. Denkman against the Prudential Fixture Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Douglass & Ynman, of St. Louis, for appellant.

W. E. Moser and John S. Marsalek, both of St. Louis, for respondent.

ATWOOD, J.

Christian C. Denkman sued to recover for injuries to his right hand, sustained while operating a wood-working machine, known as a jointer, for the Prudential Fixture Company.

This machine was built of iron, the top being table-like in form, about 5 feet long, 16 inches wide, and about 3 feet high. The knives presented a cutting surface of about 12 inches, were attached to a head or shaft, and moved in an open slot near the center of the machine top at the rate of something like 3,200 revolutions a minute. The machine top could be raised or lowered so as to cut any desired thickness from boards moved across the table and over the knives. A movable iron fence or gauge about 2 feet long and 4½ inches high extended across this slot. The operator faced the machine with his back to the west. On the morning the injury occurred, plaintiff found the machine set up for glue jointing, with a spring clamp fastened on with thumb screws to hold the work in place. He removed this and moved the iron gauge from the extreme east side of the table to within 2 or 3 inches of the west side. Then, without placing any guard over the knives, plaintiff undertook to edge some boards 12 feet long, 9 inches wide, and about 7/8 of an inch in thickness. When all except about 6 inches of one of these boards had passed over the knives, the bottom edge of the board slipped toward him, catching his right hand between the board and the knives, resulting in the loss of three fingers and other injuries to the hand.

The grounds of negligence charged in the petition are failure to furnish means to hold up the ends of long boards as they passed over the table; failure to provide means of holding the board while it was being dressed on the edge; failure to furnish help to hold the board while it was being dressed on the edge; and failure to safely and securely guard the knives.

Defendant's answer pleaded, first, a general denial; second, contributory negligence in that plaintiff failed to use a guard provided by defendant, attempted to edge the boards on the machine without first removing a guide attached thereto for glue jointing purposes, failed to ask for a helper, if a helper was necessary, and failed to use a device provided for the purpose of supporting the broads projecting over the end of the table; and, third, assumed risk.

Plaintiff's reply was a general denial.

Defendant interposed a demurrer to the evidence at the end of plaintiff's case, and again at the close of the whole case. In each instance it was overruled. The jury returned a verdict for defendant.

I. Appellant alleged a multitude of errors in his motion for a new trial. The first five listed in the assignment of errors relate to evidence offered by plaintiff and excluded at the trial.

Plaintiff testified, in part, as follows:

"The weight that I had to put on top of the board, in order to hold the rear end down, made the board slip."

The court properly sustained defendant's motion to exclude this part of the answer on the ground that it was the statement of a conclusion of the witness and constituted an invasion of the province of the jury.

After describing his injuries in detail, plaintiff was permitted to testify that since they were received he had been unable to obtain any similar employment, but he Was not permitted to tell what, if any, reasons were assigned for refusing him employment, defendant objecting on the ground that such testimony would be immaterial and mere hearsay. The objection was properly ruled for such testimony would have been hearsay. Furthermore, it was harmless because it goes only to the amount of damages and the jury found against plaintiff. Gricus v. Rys. Co., 291 Mo. 582, loc. cit. 589, 237 S. W. 763.

One of the defenses pleaded was plaintiff's failure to use the guard which defendant had provided. Plaintiff sought to show that this guard could not be used in dressing boards as wide as 8 inches, laid flat over the knives. Plaintiff had previously testified that he was injured not while dressing or surfacing boards laid fiat over the knives, but while edging boards which only presented a surface of 7/s of an inch to the knives. This evidence was properly excluded on defendant's objection that it was not relevant to any issue in the case. We also here observe that the court properly sustained defendant's objection to a similar line of inquiry, on cross-examination of witnesses Zinzelmeyer and Elms.

The same character of evidence was also properly excluded in connection with the testimony of witness Ross. Even if the guard provided by defendant could not have been used "when dressing a board 8 inches wide, lying down flat," such fact would have been irrelevant because plaintiff was not hurt in the performance of any such work, nor was such work shown to be a part of his ordinary duties.

Expert witness Ross, after describing a device termed a "presser foot," was asked whether or not in edging a soft maple board 9 inches wide, 3/4 of an inch thick, and 12 feet long, "with one of these presser feet on there it would kick out at the bottom and fall." Objection was sustained on the ground that it called for a conclusion of the witness. This particular device was not exhibited and operated in the presence of the jury, but, even if the statement called for was a proper subject of expert testimony, its exclusion was harmless because the witness had previously testified that this device would hold the board in question down until it passed entirely off the jointer, and he was subsequently permitted to testify that it would hold the board and prevent it from falling "until it passes the cutting edge." Parker v. Ins. Co., 289 Mo. 42, loc. cit. 71, 72, 232 S. W. 708.

II. Appellant says that the trial court erred in overruling certain objections to questions asked defendant's witness Elms.

In the direct examination of Zohn W. Elms, a deputy state industrial inspector offered as a witness by defendant, the following occurred:

"Q. Now, how do you inspect machinery to determine whether or not it is guarded according to law? A. Well, I go around and see —

"Mr. Douglass: Well, I will object to that, if your honor please, whether or not they are guarded according to law; not what his opinion might be.

"The Court: The objection will be overruled.

"To which action and ruling of the court, plaintiff duly objected and excepted. * * *

"Q. After you made the inspection of the plant, what is your duty, under the law, with reference to the issuance or refusal of a certificate?

"Mr. Douglass: I will object to what his duties are with reference to issuance or the refusal of a certificate. It is not competent for the purpose of showing this machine was properly guarded.

"Mr. Moser: I think it is competent on this theory: This man is an expert in his line and employed by the state of Missouri for the purpose of inspecting machinery with the view of determining whether or not they are properly guarded. The law imposes a duty on him to do certain things, if machines are not properly guarded, in his opinion; and if not, then to do something else; and, if he did those things, it shows whether or not the defendant exercised the proper amount of care, under the law, with reference to the guarding of the machines.

"The Court: The objection will be overruled.

"To which action of the court, plaintiff at the time duly objected and excepted."

The above inquires and comments were immaterial and improper, but we do not regard them or the testimony elicited as prejudicial to the extent that a new trial should have been granted.

III. Appellant assigns error in the action of the court in refusing plaintiff's instructions A, B, and C, but, finding no reference thereto either in appellant's points and authorities or argument, we shall treat it as abandoned and proceed to a consideration of alleged errors in jury instructions numbered 5, 6, 7, 8, 9, and 10.

Instruction numbered 5, given at the request of defendant, is as follows:

"The charge laid by plaintiff against the defendant is one of negligence. Negligence is a postive wrong, and therefore in this case is not presumed. In other words, a recovery may be had on a charge of negligence only when such charge is sustained by the preponderance; that is, the greater weight, of the credible evidence to the reasonable satisfaction of the jury that the charge is true as laid, and it does not devolve upon the defendant to disprove the charge, but, rather, the law casts the burden of proof in respect of it upon the plaintiff, and such charge of negligence must be sustained by the preponderance; that is, the greater weight, of the credible evidence to the satisfaction of the jury, as above stated. If, therefore, you find the evidence touching the charge of negligence against defendant to be evenly balanced, or the truth as to the charge of negligence against defendant remains in doubt in your minds, after fairly considering the evidence, your verdict must be for the defendant."

Appellant first complains of the phrase "negligence is a positive wrong," and argues that negligence may consist of an act of omission as well as of commission. A reading of the context shows that the use of this phrase was to instruct that negligence is not presumed, but must be sustained by the preponderance or greater weight of the credible evidence, and it implied no distinction between acts of omission and commission. We do not think the jury was misled thereby and find nothing condemning it in May v. Railroad,...