Ferguson v. Fulton Iron Works.

• Decision Date: 08 January 1924
• Docket Number: No. 18045.,18045.
• Citation: 259 S.W. 811
• Parties: FERGUSON v. FULTON IRON WORKS.
• Court: Missouri Court of Appeals

259 S.W. 811

FERGUSON v. FULTON IRON WORKS.

No. 18045.

St. Louis Court of Appeals, Missouri.

January 8, 1924.

Rehearing Denied March 18, 1924.

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

Action by James E. Ferguson against the Fulton Iron Works. Judgment for plaintiff: and defendant appeals. Affirmed.

Holland, Rutledge & Lashly and R. L. Ailworth, all of St. Louis, for appellant.

Claude M. Crooks and Charles E. Morrow, both of St. Louis, for respondent.

NIPPER, C.

This is an action for damages alleged to have been sustained by plaintiff on the 23d day of May, 1921, while in the employ of defendant at its foundry and steel plant in St. Louis county, Mo. It is alleged that plaintiff was engaged in chipping rough metal projections from metal castings with an automatic air hammer containing a chisel; that it was plaintiff's duty, and he was ordered and directed by defendant, to operate said hammer; that in its usual operation it would not jump, catch, and vibrate; that if such hammer did jump, catch, and vibrate the operator could not control it, and it would be extremely dangerous and likely to cut, break off, and remove pieces of metal from castings; that while he was engaged in the operation of the hammer, and using due care and caution, the said hammer, in an exceptionally and extremely unusual manner, jumped, caught, and severely vibrated so that plaintiff could not control it, and pieces of metal were knocked from a piece of casting and thrown into and against plaintiff's eye, causing the sight to be permanently lost.

The petition counted upon general negligence, plaintiff seeking to invoke the doctrine of res ipsa loquitur.

The answer, in addition to a general denial, pleads contributory negligence on the part of plaintiff, as well as his failure to have the injured eye properly cared for.

Plaintiff obtained judgment against defendant for $5,000. From this judgment defendant appeals.

The facts of this case, in so far as they may be necessary to determine the questions presented here by appeal, are about as follows:

On the date mentioned in the petition, plaintiff, who was about 34 years old, was in the employ of defendant at its foundry, engaged in chipping rough projections from certain castings by means of an automatic air hammer and a chisel operated by compressed air communicated to the hammer by means of a hose attached to pipes leading from tanks of compressed air, which air was compressed by means of an engine. The hammer was 12 to 14 inches in length, and there was a piston or plunger which worked back and forth in the cylinder or barrel and against the chisel placed in the end of the barrel. When in operation, plaintiff would hold his right hand on the handle and his left hand around the chisel. There was a trigger which was pulled with the finger to operate and control the air. The chisel was then held against rough projections on metal castings, and when struck by the plunger would break off the castings and make the metal smooth. When the hammer was in order, and pressure was placed upon the trigger, the valve opened and air was forced into the hammer and caused the piston to operate, and when the pressure was taken off the trigger it would shut off the power. Plaintiff was operating this hammer, but was not particularly familiar with its mechanism. Plaintiff had nothing to do with the inspection or repair of the hammer, nor had he any control over the source of power which operated the same. In the ordinary and usual operation of the hammer it did not jump or vibrate, but when it was placed against projections the force of the stroke would be from the operator, and would cause the particles of metal broken and chipped off to fly away from him. This was plaintiff's evidence in respect to this matter. Although he stated that occasionally a few pieces might fly toward him, yet nearly all these small particles of metal castings, which were removed by means of the hammer when in proper operation, would fly away from him. The evidence of a number of witnesses for defendant was to the effect that such particles would fly in all directions.

From plaintiff's evidence it further appears that, while he had operated these hammers for quite a period before his injury, he had never before been struck by particles of metal chipped off by such hammer, although they might fly toward him. On this occasion he wore goggles, although they were not properly arranged so as to protect his eyes. At the time plaintiff went to work on the night of his injury a hammer was furnished and provided him by defendant's foreman, Schroeder, and he was directed by said foreman to use this particular hammer, and he started chipping from a steel valve chest. When he had almost reached the top or peak of the same, the hammer suddenly began jumping and vibrating so that he could not control it, and the chisel knocked the pieces of casting into his eye.. The plaintiff then describes what took place in the following language:

"I was chipping forward until I bad reached almost the top or peak of this cut I was taking off; this cut ran a length of about something like six or eight inches, and I judge about an inch, or three-quarters, something like that, thick; the cut was crosswise—broad—and the thickness was something like an inch; maybe a little better than an inch. In chipping this, when I reached this highest peak, all at once this machine gets to bucking, and when it commenced bucking, jumping, and vibrating it threw the slack of this casting, and one piece hit the lens, a pretty good chunk, and three pieces entered into this left eye. A piece hit my cheek, .and one small piece hit the right eye. That blinded me, and the machine began to buck and vibrate so that I could not hold it. Eventually it kicked the chisel from my hand, down about the side of the casting I was chipping. Then I taken the hammer; it continued to blow and hiss; .the trigger was hung; it did not seem to want to release, and I gave it a couple of jerks down against the platform, and she cut herself off, see?"

Plaintiff testified that he did not do anything to cause the hammer to jump and vibrate as it had, nor did he see any one else do anything to bring about such a result. A few moments after plaintiff was injured he picked up the hammer, and was told by his foreman, Mr. Schroeder, to throw it on the bench and let the repair man fix it. Plaintiff was using the hammer in the usual and customary way that he had always used it, and had never known it to act in such an unusual manner before.

Most of the evidence offered by the defendant was to the effect that in chipping cast iron in the manner in which plaintiff was chipping it the flight of the flying particles of chips could not be controlled. There was also evidence offered by the defendant that defects in the hammer or operation of the compressors would only have the effect of cutting off the power so that the hammer would not operate, and that none of these things would cause the hammer to jump or vibrate. Also, that all tools were tested prior to their leaving the toolroom, and that all air compressors were in proper operation at the time of the accident.

Defendant's foreman, Schroeder, who directed plaintiff to use the hammer In question before he was injured, and also directed him to throw it on the bench and let the repair man have it after he was injured, was not called as a witness in the case. This particular hammer had been in use at defendant's foundry for about five years, as shown by the testimony of defendant's repair man, who also testified that he had no recollection of having seen the hammer in question for a month or two before or after the accident. Defendant's evidence tended to show that if dirt or dust would get in the hammer, or a rock, as sometimes happens, the trigger would close and would not work, but the plunger would continue its strokes. When the hammer is going at full speed or the valve wide open, the plunger hits about 600 times a minute. This speed can be controlled down to 80 or 100 strokes a minute when the trigger and valves are in proper working order.

One witness, testifying for defendant as an expert, said that, where a hose of this kind was attached to a hammer, and the power or air was increased, he did not think it...