Duerst v. St. Louis Stamping Co.

• Decision Date: 12 June 1901
• Citation: 63 S.W. 827,163 Mo. 607
• Parties: DUERST v. ST. LOUIS STAMPING CO.
• Court: Missouri Supreme Court

63 S.W. 827

163 Mo. 607

DUERST v. ST. LOUIS STAMPING CO.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

MASTER AND SERVANT — INJURY TO SERVANT — UNSAFE TOOLS — CHIPPING HAMMER — ACTIONS — PLEADING — ASSUMED RISK — INSTRUCTIONS.

1. In an action by a servant for injuries caused by a chip from a hammer, a petition stating that the hammer was defective in its material, to defendant's knowledge, or that defendant could have known it by exercise of reasonable care, by reason of which defect plaintiff was injured, could not be objected to for the first time at the trial by objection to evidence on the ground that it alleged that defendant did not furnish an absolutely perfect tool, which defendant was not bound to do, and that it did not state that plaintiff was ignorant of the defect.

2. Where a defendant answers a petition without demurring, it is too late to challenge the sufficiency of the petition by objection to evidence, if the language of the petition is susceptible of a construction that states a cause of action.

3. That a servant had knowledge of a defect in a tool he was using, so as to preclude a recovery, was matter of defense, which plaintiff was not required to anticipate and negative in his petition.

4. Where a servant who had little experience in the work took a hammer furnished him, which had chipped, to his foreman, and complained that it was not safe, and the foreman took it, and, instead of testing it, made a superficial examination, and returned it to plaintiff with an assurance that it was "all right," plaintiff was entitled to assume it was safe, and did not assume the risk of injury from a chip which subsequently flew therefrom.

5. Where plaintiff and a fellow employé testified that a hammer chipped again and injured plaintiff while it struck a wire on a steel mandrel on which plaintiff was working, and experts testified that a hammer which had once begun to chip would continue to do so unless beveled, the fact that the experts also said that the hammer would not chip if it struck the wire, and if it chipped it probably missed the wire and struck the mandrel, did did not preclude a recovery, but presented a question for the jury.

6. Where a hammer furnished plaintiff to bend wire had chipped before, and the wire and utensil on which plaintiff was working were soft and not liable to chip, the fact that the chip which flew into the plaintiff's eye was so infinitesimal that the nature of the metal could not be recognized did not preclude a recovery, on the ground that there was no evidence that it was a chip from the hammer that injured plaintiff; the question being for the jury.

7. A charge that if the jury believe that the accident was caused by the careless and unskilled manner in which plaintiff handled or operated the tools used in his work, and but for such carelessness the accident would not have happened, plaintiff could not recover, should have been refused, as too general; it being claimed that the injury was caused by a chip from a particular defective hammer.

8. Where plaintiff was alleged to have been injured by a chip from a defective hammer, it was error to refuse to charge that if the jury believe that the only tools used by plaintiff to perform his work were a hammer and a mandrel, and that such tools were reasonably safe, but that plaintiff used the hammer in so careless a manner as to strike the mandrel instead of the wire on which he was working, and thereby caused the hammer to chip, which flew in his eye, causing the injury, plaintiff was himself guilty of negligence and could not recover.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by John Duerst against the St. Louis Stamping Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action for damages for personal injuries. Defendant is a corporation engaged in manufacturing articles of tinware and granite ironware. Plaintiff was an employe of defendant. His work was to insert the curved or looped end of a wire handle into a part of a utensil in process of manufacture, and strike it with a hammer with sufficient force to close the curved end so that it would not slip out. For this work plaintiff was furnished a steel mandrel, attached to his workbench, and a steel hammer. There was a grove in the mandrel, into which the wire was laid to receive the stroke of the hammer. While engaged in this work, upon a stroke of the hammer, a very small particle of what the plaintiff's testimony tended to show was a steel chip from the hammer flew with force into the plaintiff's eye. The result was great suffering and ultimate loss of the eye, which the surgeons had to cut out of its socket. The negligence charged in the petition is in these words: "That the said hammer and tool provided by defendant to plaintiff was defective in its material, as defendant well knew, or by the exercise of reasonable caution or care might have known, and that on or about March 23, 1896, while plaintiff was using same in performing his duties as above set forth, a piece of the steel or iron of said hammer, by reason of said defective condition, chipped off and flew into plaintiff's right eye, causing the total destruction thereof," etc. The answer was a general denial, and a plea that the plaintiff "was performing his labor in a careless, improper, dangerous, unworkmanlike, and negligent manner, and in so doing was guilty of negligence directly contributing," etc. The reply was a general denial. The plaintiff's testimony tended to show: That at the time of the accident he was 20 years and a few months old; was a baker by trade, but had been in the employ of defendant about six months, and for the six weeks next preceding had been engaged in work of the kind he was doing when he suffered the injury. That a few days before he complained to a fellow workman that the hammer he was using was too much worn to do satisfactory work, and asked this fellow workman to apply to the foreman for a new hammer for him, which was done, and the foreman promised a new hammer, but forgot to attend to it, and the plaintiff himself went to him and made the request. The foreman said: "Wait and I will get you one. Loewe [the fellow workman referred to] told me already yesterday, but I forgot about it." But the foreman still did not furnish the new hammer as requested, and Loewe went to the defendant's man who keeps such supplies for the employés and obtained a new hammer and gave it to plaintiff. That was on Saturday. The accident occurred the next Monday. Almost as soon as plaintiff began to work with the new hammer, he noticed that chips flew off it, and he took it to the foreman and showed it to him, saying: "I believe this hammer is no good. It chips off on one side." The foreman took the hammer in his hand, examined it, and handed it back to plaintiff, saying it was all right, and the plaintiff returned to his bench and resumed work with it. On the next Monday morning, about 10 o'clock, while thus working with the hammer, a piece chipped off and struck plaintiff in the eye. His suffering was great, and his eye entirely destroyed. The testimony of plaintiff and that of his witness, Loewe, who said he was looking at him at the time, was that on the stroke which resulted in the accident the hammer struck the wire, and did not strike the mandrel. That was the only direct evidence on that point, no other witnesses professing to have seen it. E. B. Roth, an expert in tools, testified for plaintiff that he had tested this hammer, and, while it had the usual appearance of a factory hammer, yet it was too hard, as he had found by testing it with a file. The degree to which it was hardened could not be discovered by looking at it, but only by testing it with the file or the emery wheel. A hammer once showing a tendency to chip is not safe to use without grinding a beveled edge. When once a chipping begins, it usually continues. Upon cross-examination this witness said that if the mandrel was of hard steel the striking of it by the hammer was liable to result in a chipping of the hammer, but that the hammer would not break by striking the wire; that this hammer was of first-class brand, — the best in the market. On the part of defendant the testimony tended to show that the foreman, when applied to for a new hammer for plaintiff, told him he had no time to attend to it, and that he (the foreman) did not know that a new hammer had been furnished to plaintiff until after the accident; that plaintiff had never shown him the hammer or told him it was defective: that sometimes, in the kind of work the plaintiff was doing, a man would miss the bail or wire and hit the mandrel; that all men in that work are liable to such mislicks, but the more experienced are less apt to do so; that hitting the mandrel might cause the hammer to chip, but hitting the wire would not; that, in the opinion of experts, this hammer was caused to chip by hitting the mandrel; that this hammer was of the best factory known in the market; and that, while some may be tempered too hard, that condition could not be discovered by looking at them, but only by experience or experiment. There was testimony for defendant, also, showing that the fragment that struck the plaintiff in the eye had been examined by a chemist under a magnifying glass and with a magnet, but it was too small to permit of an analysis, and could not be classified either as steel, cast iron, or iron oxide. At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant asked an instruction to the effect that the plaintiff was not entitled to recover, which was refused, and exception taken.

The court instructed the jury as follows at the request of the plaintiff: "(1) The court instructs the jury that it was the duty of the defendant, as employer, to furnish to ...