Engle v. American Car & Foundry Co.

• Decision Date: 02 November 1926
• Docket Number: No. 19531.,19531.
• Court: Missouri Court of Appeals
• Parties: ENGLE v. AMERICAN CAR & FOUNDRY CO.

287 S.W. 801

ENGLE v. AMERICAN CAR & FOUNDRY CO.

No. 19531.

St. Louis Court of Appeals. Missouri.

November 2, 1926.

Rehearing Denied November 16, 1926.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Bales Engle against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (G. A. Orth, of New York City, of counsel), for appellant.

S. F. Pinter and Brownrigg, Mason & Altman, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff while in the employ of the defendant at its manufacturing plant in the city of St. Louis. At the time of his injury, plaintiff was working at a shearing machine, known as the alligator shears, used for cutting iron in the defendant's plant. The machine was operated by electrical power, and plaintiff had nothing to do with its operation. It was his duty to feed the iron to the machine, or place it between the blades of the machine, to be cut, and he was so engaged at the time of his injury. The construction and action of the machine was similar to that of shears or scissors. The lower blade was stationary, and the iron was cut by the downward movement of the upper blade. When the machine was in operation, the upper blade made about 30 downward strokes per minute, that is, one every two seconds. The machine was about 4 feet high over all and about 10 feet long. The cutting platform of the machine was about 2½ feet above the floor. Each blade of the machine was about 12 inches long and 8 or inches wide. At the time of his injury, the plaintiff placed between the blades a piece of iron about 6 or 7 feet long, 7 inches wide, and 1½ inches thick, weighing about 150 pounds. In placing the iron between the blades, plaintiff had hold of one end of the iron and a helper had hold of the other. The end that the plaintiff held curved upward. When the upper blade of the machine struck the iron in its downward movement, the end of the iron which plaintiff held kicked upward and struck his right arm and shoulder, thus inflicting serious and permanent injuries.

The petition charges, among other assignments of negligence, the failure of the defendant to guard the shearing machine.

The answer is a general denial, coupled with a plea of assumption of the risk, and also a plea of release by plaintiff of his claim given in consideration of $30 paid to him by defendant.

The cause was tried to a jury, there was a verdict and judgment in favor of plaintiff for $3,000, and defendant appeals.

The only assignment of negligence submitted to the jury as a ground of liability was the failure of defendant to guard the shearing machine as required by the statute, and defendant urges here that there was no substantial evidence to show that it was possible to guard the machine without materially interfering with its operation, and that therefore the court committed error in overruling its demurrer to the evidence. The evidence on this issue is not materially different from the evidence in Herman v. American Car & Foundry Co. (Mo. App.) 245 S. W. 387, where the same character of machine was involved and the same point was raised and ruled against the defendant. That case is controlling here.

Defendant further urges that its demurrer to the evidence should have been sustained by the court, because plaintiff's own evidence, as well as the evidence offered by the defendant, shows conclusively that the release signed by plaintiff in consideration of $30 paid him by the defendant is a valid and binding release. At the time plaintiff was injured, he was sent by his foreman to the defendant's surgeon for treatment. He was at home under treatment for two weeks. He then returned to the defendant's plant and worked as a watchman at greatly reduced wages. His injuries are serious and permanent. The biceps muscle of the right arm was torn lose from the tendon at the shoulder. The end of the broken tendon lies in the shoulder joint and affects the functioning of the joint very much as a wedge in a hinge. The muscles of the arm are soft and flabby and lack tone and power. The movement and flexion of the hand and arm are greatly impaired and limited. These conditions are permanent and probably progressive. About a month after plaintiff was injured a representative of the company, known as the safety first man, who exercised some sort of supervision over the workmen in the plant, directed plaintiff to go to the main office of defendant to get $30 for the two weeks' time he had lost on account of his injuries. Plaintiff went to the main office as directed and found Mr. Ben G. Kunz there. He told Mr. Kunz that the safety first man had sent him there. Just what position Mr. Kunz held with the defendant does not appear, but it was a part of his duties as a representative of the defendant to negotiate settlements and compromises with the employes on account of injuries, and he had. represented the defendant in this capacity about 13 years. When plaintiff went to the main office as directed by the safety first man, Mr. Kunz sent...