Downing v. Biscuit Co.

• Decision Date: 20 July 1928
• Docket Number: No. 27112.,27112.
• Citation: 8 S.W.2d 884
• Parties: HENRY DOWNING v. LOOSE-WILES BISCUIT COMPANY, Appellant.
• Court: Missouri Supreme Court

8 S.W.2d 884

HENRY DOWNING v. LOOSE-WILES BISCUIT COMPANY, Appellant.

No. 27112.

Supreme Court of Missouri, Division Two.

July 20, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

AFFIRMED.

Jones, Hocker, Sullivan & Angert and Willard A. McCaleb for appellant.

(1) On the evidence disclosed by the record respondent did not make a case for the jury. (a) The master performs the full measure of his duty to the servant when he exercises ordinary care to furnish his servant with reasonably safe tools and appliances. Brands v. Car Co., 213 Mo. 698. (b) The master is only required to exercise care against such occurrences as may reasonably be anticipated. Riger v. Leming Lbr. Co., 210 Mo. App. 322; Lowe v. Railroad, 265 Mo. 587; St. Louis Ry. Co. v. Conway, 156 Fed. 237; Cartwright v. Railway, 228 Fed. 872; Nordstrom v. Railway Co., 104 Pac. 813; Hysell v. Swift & Co., 178 Mo. App. 39; Brewing Co. v. Talbot. 141 Mo. 674; Vanderpool v. Partridge, 13 L.R.A. (N.S.) 668. (c) The risk involved by striking steel on steel in commensurate with the degree of force applied and the master could not, by any rule known to the law, be required to divine what amount of force would be exerted by the respondent in removing the nails from the wooden table or that it would be necessary to exert sufficient force to break the tools. L'Houx v. Union Const. Co., 30 L.R.A. (N.S.) 800. (d) There was here involved a simple operation with simple tools and the resulting risk depended entirely on the force exerted and the latter circumstance was wholly within the control of respondent. L'Houx v. Union Const. Co., 30 L.R.A. (N.S.) 800. (2) Instruction 1 is defective in several particulars: (a) It authorized the jury to find appellant guilty of negligence in failing to warn respondent of the risk involved in striking the hatchet with the hammer. The master owes no duty to warn unless he should reasonably have anticipated that the risk was one likely to arise. Hysell v. Swift & Co., 78 Mo. App. 39; Brewing Co. v. Talbot, 141 Mo. 674; Traffic Truck Co. v. Claywell, 12 Fed. (2d) 419; Seefried v. Wangler Bros., L.R.A. 1919B. 854; Hutchison, T. & S.F. Ry. Co. v. Nyor, 8 Fed. (2d) 30. (b) The Instruction 1 failed to require a finding that appellant knew, or by the exercise of ordinary care could have known that the hatchet was unsafe and dangerous, and knew, or by the exercise of ordinary care could have known, that such force would be required as would be likely to involve a risk of the hatchet chipping and particles therefrom flying into plaintiff's eve. (c) There was no implication of knowledge here, as plaintiff failed to show that the hatchet was defective prior to the immediate use thereof by himself. Emmert v. Amusement Co., 193 S.W. (Mo. App.) 909; McCaffrey v. Tam Bros. Glue Co., 143 Mo. App. 24. Actual knowledge therefore was necessary and the proof did not show it. (d) Knowledge of the defect, if any, actual or implied, was a necessary element in plaintiff's case which was not included in this instruction. Lehnerts v. Otis Elevator Co., 256 S.W. 823; Manche v. Box Co., 262 S.W. 1021; Emmert v. Amusement Co., 193 S.W. 909; Haggard v. McGrew Coal Co., 200 S.W. (Mo.) 1072; Suyder v. Media Mining Co., 206 S.W. 593; Eudy v. Federal Lead Co., 220 S.W. 504; Walling v. Missouri Stair Co., 227 S.W. 879; Rowden v. Daniell, 151 Mo. App. 15. (3) The verdict and judgment are excessive, Loduca v. Ry. Co., 289 S.W. 908; Adams v. Railroad, 287 Mo. 554; Knott v. Boiler Works, 299 Mo. 613; Kammerer v. Wells, 252 S.W. 730.

Mark D. Eagleton, F. Gerritzen and Hensley, Allen & Marsalek for respondent.

(1) The court properly overruled the demurrer to the evidence, (a) Appellant's argument that the evidence fails to show that the tools furnished plaintiff were dangerous or unsafe, and that defendant could have anticipated injury to plaintiff therefrom, is entirely unfounded, in view of the testimony of defendant's foreman, who positively affirmed that to attempt to strike on the face of a steel hatchet with a hammer was hazardous, and likely to cause chips to fly from the tools: that such a method of work was absolutely improper and unsafe and dangerous. On final demurrer to the evidence plaintiff is entitled to the benefit of any favorable testimony adduced by defendant. Anderson v. Davis, 284 S.W. 449; Stauffer v. Railroad, 243 Mo. 305. (b) Defendant is estopped by its answer to claim that the use of the hammer and hatchet in the manner shown by the evidence was not dangerous or injury could not reasonably have been anticipated from such use. McKenzie v. United Rys. Co., 216 Mo. 1; Stewart v. Gas Co., 241 S.W. 912; Milward v. Wabash Ry. Co., 207 Mo. App. 356; Jewell v. Mfg. Co., 143 Mo. App. 210; Grott v. Shoe Co., 2 S.W. (2d) 789. (2) In view of the fact that defendant's foreman, who was over plaintiff, and who ordered him to strike the hatchet with the hammer, admitted that he knew such method of work was unsafe, dangerous, absolutely improper and likely to cause chips to fly; and the further admissions on this subject in defendant's answer, the appellant's claim that it was error to submit defendant's negligence in failing to warn plaintiff, for lack of proof of the facts above stated, is untenable. The additional objection urged against Instruction 1, that it failed to require a finding that defendant could have known of the danger, is equally unfounded, because the existence of such danger was asserted by both parties and proven without controversy, and the required finding that defendant negligently ordered plaintiff to use the tools in the manner referred to was equivalent to a finding of prior knowledge, on defendant's part, that such method of work was not reasonably safe. Authorities, Point 1; Morton v. Const. Co., 280 Mo. 360; Clippard v. Transit Co., 202 Mo. 432; Hall v. Railroad, 74 Mo. 302. (3) The verdict and judgment are not excessive. (a) The same amount has been approved for a similar injury. Russell v. Railroad, 295 S.W. 102. (b) The appellate court will not substitute its own opinion for that of the jury in the allowance of damages, but will interfere only when the verdict is so great as to conclusively show that the jury were actuated by corruption or prejudice. Grott v. Shoe Co., 2 S.W. (2d) 790; Laughlin v. Railway, 275 Mo. 472; Manley v. Wells, 292 S.W. 67.

DAVIS, C.

This is an action for damages for personal injuries, resulting from the blow of a hammer upon a hatchet used as a chisel, which caused a steel sliver to fly and pierce plaintiff's eye so that its vision is obscured. The jury awarded plaintiff $15,000, and defendant appealed from the judgment entered on the verdict.

The evidence adduced warrants the finding that, on September 25, 1924, plaintiff, a negro, then twenty-two years of age, had been in defendant's employ for three or four days. His wages were eighteen dollars a week. Hired by the foreman of the tin shop, his duties consisted in shearing brass parts from cans, which cans were to be destroyed. It develops that shears were used to cut the brass from cans. The shears rested upon and were fastened to, a table by means of a metal strap about an inch wide, nailed to the table. The shears, about twenty-eight inches in length, were operated by means of a handle, similar to the handle of a pump. The nail heads were driven into the wood of the table.

The plaintiff, who was inexperienced, was working with a white man named Seibert, hired the day after plaintiff began his service. In the forenoon of the day he was injured, plaintiff complained to the foreman that the shears were set too low. The foreman agreed to raise them, telling plaintiff he would show him the way. Subsequent to the noon hour, at the suggestion of Seibert, plaintiff saw the foreman and requested a claw-hammer with which to pull the nails, the foreman responding that he did not have one. Upon informing the foreman that the nails were too deeply imbedded in the wood, and that a claw-hammer was necessary, the foreman said to plaintiff, "Well, use the hatchet as a chisel." In instructing plaintiff in the method of using it as a chisel, the foreman said, "Place the blade of the hatchet against the nail and take the hammer and hit it, and you can cut the nails off and remove the strap from the shears." On returning to the table, plaintiff communicated to Seibert the advice of the foreman. As suggested, using the hatchet as a chisel and hitting it with the hammer, Seibert severed the heads of two nails. He then said to plaintiff, "You try some." Plaintiff, adopting the same method, placed the blade of the hatchet against the head of a nail and while engaged in thus cutting it off, a sliver of steel flew from the hatchet and pierced the eye, leaving it with a vision able to distinguish light only. Other pertinent facts, if any, will be stated in the opinion.

I. Defendant first takes the position that a verdict should have been directed in its behalf. Four postulates are urged to support the contention thus: (a) The master Ordinary Care: performs the full measure of his duty to the Common Tools. servant when he exercises ordinary care to furnish his servant with reasonably safe tools and appliances; (b) The master is only required to exercise care against such occurrences as may reasonably be anticipated; (c) The risk involved by striking steel on steel is commensurate with the degree of force applied and the master could not, by any rule known to the law, be required to divine what amount of force would be exerted by the respondent in removing nails from the wooden table, or that it would be necessary to exert sufficient force to break the tools; (d) There was here involved a simple operation with simple tools, and the resulting risk depended entirely on the force exerted and the latter circumstance was wholly within the control of plaintiff.

Turning to the amended answer, we find that it avers, in connection with...