Dutzi v. Geisel

• Citation: 23 Mo.App. 676
• Parties: AUGUST DUTZI, BY NEXT FRIEND, Respondent, v. ANDREW GEISEL, Appellant.
• Decision Date: 21 December 1886
• Court: Court of Appeal of Missouri (US)

23 Mo.App. 676

AUGUST DUTZI, BY NEXT FRIEND, Respondent,

v.ANDREW GEISEL, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1886.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

KLEIN & FISSE, for the appellant: Under evidence showing that the injury and the negligence had no connection the court will direct a verdict for the defendant. Dunn v. Railroad, 21 Mo. App. 188. The master is not an insurer, and he is bound only to ordinary care in providing machinery for his employes. Flynn v. Railroad, 78 Mo. 195; Cagney v. Railroad, 69 Mo. 416; Smith v. Railroad, 69 Mo. 32. “If the person injured was fully aware of the hazard before the accident, or was guilty of negligence himself, he can not recover.” Nolan v. Shickle, 3 Mo. App. 300; Deering on Negligence, sect. 201; Woodward Iron Co. v. Jones [Sup. Ct. Ala.] 23 C. L. J. 296. And in such case a judgment for the plaintiff will be reversed in the appellate court. Lenix v. Railroad, 76 Mo. 86; Cagney v. Railroad, 69 Mo. 416, 424; Price v. Railroad, 77 Mo. 508; Dunn v. Railroad, 21 Mo. App. 188.

TAYLOR & POLLARD, for the respondent: The right to hire and discharge employes is not the test as to whether a foreman is a vice-principal. Dowling v. Allen, 74 Mo. 13; Moore v. Railroad, 85 Mo. 593. The true rule now is, that the master is liable for all injuries caused by the negligence of a fellow-servant, when such fellow-servant is empowered with superior authority, and may direct the inferior. Wood on Master and Servant, 86; Granville v. Railroad, 10 Fed. Rep. 711; Ford v. Railroad, 110 Mass. 260; Railroad v. Savally, 36 Ohio St. 221; Laning v. Railroad, 49 N. Y. 521; Filke v. Railroad, 53 N. Y. 459; Cowdon v. Railroad, 78 Mo. 567; Hough v. Railroad, 100 U. S. 213. Notice to a person to whom the master has delegated the duty of providing suitable machinery for employes, is notice to the master. Fuller v. Jewett, 80 N. Y. 46; Maloney v. Locomotive Works, 14 R. I. 204; Pavis v. Railroad, 53 Vt. 84; Fay v. Railroad, 30 Minn. 23; Filke v. Railroad, 53 N. Y. 459; Ford v. Railroad, 110 Mass. 260; Hough v. Railroad, 100 U. S. 213; Cone v. Railroad, 81 N. Y. 206; Railroad v. Kirk, 62 Tex. 227.

THOMPSON, J., delivered the opinion of the court.

This was an action for damages for injuries received by the plaintiff while operating a machine as an employe of the defendant. The plaintiff had a verdict and judgment.

As in most cases of this kind, the stress of the case is the question of the plaintiff's own contributory negligence. The plaintiff, a lad about sixteen years of age, was in the employ of the defendant and was put to work by the defendant's foreman with a machine used for cutting and crimping the caps and bottoms of tin cans. The machine and manner of operating it were exhibited to the jury at the trial. The machine had a broad platform, about three and a half feet from the floor, firmly fixed at an angle of about thirty-five degrees, the highest part being immediately in front of the operator and the slope being to the rear. In the center of this platform is a place where steel dies of various sizes may be adjusted. These dies are raised about three quarters of an inch above the plane of the platform, and firmly fixed thereon. Above the place where the die is so fixed there is a stationary slide supported from the rear of the machine, the bottom of which is about five or six inches from the top of the platform; and in this slide, operating perpendicularly to the lower die, there is a punch supplied with a counterpart of the lower die. When in the operation of the machine, the punch and upper die are brought down, they descend exactly over the lower die, and can not descend anywhere else, or move in any other direction. Attached to the machine at the right of the operator there is a fly-wheel, which is constantly kept in motion by the belt connected with the shafting above it.

The motion of the fly-wheel, however, does not engage the sliding punch until, by a pressure of the foot upon a treadle, a clotch or piece of steel is projected into an opening left on the inside of the fly-wheel near its axle, and as the wheel revolves the clotch engages the sliding punch and brings it down upon the lower die with great power, cutting and turning up the edges of the tin placed on the lower die by the operator, and forming a cover or bottom for a tin can at one stroke. The cover so cut falls automatically to the rear of the machine. The instant the pressure is removed from the treadle the clotch is automatically withdrawn from its position and the fly-wheel revolves without operating the machine again until the sliding punch is again engaged in the same manner as above described. When the sliding punch has made its downward stroke, it immediately ascends and remains suspended, some four inches above the lower die, until it is again brought down by the projection of the clotch into the operating space of the fly-wheel. If the pressure of the foot is continued upon the treadle, the clotch continues to engage the sliding punch, and this in turn continues to ascend and descend until the pressure is removed, and then remains stationary above the lower die, as above described. If, therefore, the pressure upon the treadle is not immediately removed, upon the descent of the sliding punch, it will be re-engaged and descend again upon the lower die before the operator may wish it to come down. But no harm can come to the operator if he keeps his fingers from the lower die.

The evidence showed conclusively that the plaintiff was thoroughly acquainted with the danger attending the ordinary use of the machine, and thoroughly understood the necessity of keeping his hands away from the lower die, so that the descending punch could not touch them.

The plaintiff's evidence tended to show that, some days prior to the accident, the upper die had fallen while the plaintiff was working the machine and when his foot was not upon the treadle; that he had reported this fact to Gus Meyer, the assistant foreman, who had examined the machine, had oiled it, and had assured the plaintiff that the punch would not drop again without the plaintiff's foot being on the treadle. All the evidence in the case showed that Gus Meyer was the assistant foreman of the defendant, whose duty it was to put the boys at work in the particular room and to oversee them, and who had charge of the machinery in that room. As there is a question about the nature of the authority of Gus Meyer, it may be proper, in order to make ourselves more clear, to quote from the testimony adduced on behalf of the defendant upon this point. Adelbert W. Geisel, son of the defendant and his general foreman, testified as to the position of Gus Meyer: “He sets dies and attends to the machinery, that it is all right; sets the dies and sharpens them up; partly attends to the boys once in a while when I am out. He sees that the boys do their work, that they do their duty. He has no right to employ or discharge men or boys. I give the instructions as to what the boys are to do. Independently of me, Gus Meyer has no authority whatever.” The defendant himself, after testifying that no one but he and his son, Adelbert, had the right to employ or discharge men, added: “Gus Meyer attends to the machinery and to the boys in general in the machine shop where the cans are made. * * * Gus Meyer attends to the machines to see that they run all right. He sets the dies and attends to the machinery, so it is in running order.” The plaintiff's evidence further showed that, on the first of October, 1885, while the plaintiff was working at the machine, the punch suddenly fell, although the plaintiff's foot was not upon the treadle; that when it came in contact with the die it cut two fingers of the plaintiff's right hand, taking them off, the first between the first and second joints, the second at the first joint. It was freely admitted by the plaintiff in his testimony that he understood perfectly the necessity of keeping his hands away from the die, so that they would not get caught by the descending punch, and he does not give any intelligible reason why his hand got so caught, except that the punch fell so suddenly that he did not have time to think. He said: “I did not have time to think; I pulled them (my fingers) out; I thought I could get them away from there before the die would strike the under die. * * * If I had pulled my hand out to the right, instead of to the left, I would not have been injured.”

We understand that the case presents no doubt, and that there is no disagreement between the learned counsel who represent the opposing parties, down to a certain point. And that is this: If the plaintiff had not given evidence tending to show that Gus Meyer had, after being notified by him of the defective operation of the machine, attempted to repair the defect, and given the plaintiff assurance that he had done so, then, the plaintiff having received the injury, knowing of the defective operation of the machine, the plaintiff would have been guilty of such contributory negligence as would have barred his recovery as matter of law. With full knowledge of the danger, he would have elected to continue to use the machine. He would have proceeded as a voluntary agent, with his eyes open, and would have taken his chances. This would have precluded his right of recovery beyond any doubt.

But the evidence which the plaintiff gave, and which the jury believed, as is shown by an answer given by them to a special interrogatory, and by their general verdict under the instructions, to the effect that he had apprised Gus Meyer of the defective working of the machine, that the latter had attempted to remedy the defect, and had assured the plaintiff in substance that he had done so, and that he might thereafter continue to work it with safety, seems sufficient to take the case out of the rule which would bar a recovery on the ground of...